271 Mass. 318 | Mass. | 1930
This was a complaint under G. L. c. 272, § 28, charging that the defendant on the sixteenth day of April, 1927, at the city of Boston, within the judicial 'district of the Municipal Court of the City of Boston, did sell to Daniel J. Hines “a certain printed book, entitled, 'An American Tragedy/ then and there containing certain obscene, indecent and impure language, manifestly tending to corrupt the morals of youth, the same being too lewd and obscene to be more particularly set forth in this complaint.” From conviction and sentence in the said Municipal Court on that complaint the defendant appealed to the Superior Court for the transaction of criminal business. Before the trial in the Superior Court thereon the Commonwealth, without objection made by the defendant, filed a motion to amend the complaint by inserting after the words “then and there” references to certain pages in the book. After a hearing this motion was allowed, without exception by the defendant. The two volumes of eight hundred and forty pages which comprise “An American Tragedy” are made a part of the record.
At the trial in the Superior Court the Commonwealth proved that Daniel J. Hines, a lieutenant in the Boston Police Department, purchased from the defendant for $5
The defendant then offered in evidence both volumes as showing the entire development of the story and as bearing upon the question whether the language complained of was “obscene, indecent and impure.” This evidence was excluded and the defendant duly excepted. The defendant then offered oral evidence of the theme of the story contained in “An American Tragedy;” the evidence was excluded and
At the close of the evidence, the defendant filed a motion that “a verdict of not guilty be ordered in his favor.” This motion was denied after hearing and the exception of the defendant noted. The jury returned a verdict of “guilty.” The case is before this court on exceptions to “the aforesaid rulings on the evidence” and to the “denial of motions aforesaid.”
It is to be noted that the trial proceeded on the assumption by the judge and the parties that the question at issue was whether certain passages contained in volume one of “An American Tragedy” were obscene, indecent or impure, manifestly tending to corrupt the morals of youth, and that no issue was raised by the parties or submitted to the jury as to whether volume one as a whole, whether volume two as a whole, or whether volumes one and two as a whole were offensive to the statute. It must further be assumed that, at the hearing on the defendant’s motion that a verdict of not guilty be ordered, it was determined by the judge as a preliminary question that some at least of the passages specified in the amended complaint when read in their settings were of such a character as would warrant the jury in finding beyond a reasonable doubt that the language used in some one or more of them had a manifest tendency to incite impure thoughts, excite the sexual passions, and corrupt the morals of youths into whose hands the book might1 come. Because no exception was taken to the charge, we must also assume that the jury were fully, accurately and adequately instructed, and that the instructions defined with sufficient fullness and accuracy the terms “obscene,” “indecent,” “impure” and “manifestly” as applied to the question whether the language used in this book had a manifest tendency “to corrupt the morals of youth.”
It is strongly contended by the defendant that under the statute “the prosecution must prove not only that the language is obscene, indecent and impure, but also that the book manifestly tends to corrupt the morals of youth, — certainly a proposition that cannot be determined unless the
A careful reading of this compact book of more than eight hundred pages, which is a part of the record, affords a demonstration that it would have been impracticable to try the case had the defendant been permitted to read pthis long novel to the jury, and makes evident that even assuming great literary excellence, artistic worth and an impelling moral lesson in the story, there is nothing esÍsential to the history of the life of its principal character ¡hat would be lost if these passages were omitted which the ury found were obscene, indecent and manifestly tending oo corrupt the morals of youth. It is evident the court in the exercise of its discretion had the authority to exclude the oral evidence of the theme of the story contained in “An American Tragedy.” A synopsis of the novel necessarily would take color from the mental predisposition of the abstractor and narrator toward the censorship of literary productions, and consequently emphasize oy minimize passages and situations that would not be chosen by other narrators differently minded. The seller of a book which contains passages offensive to the statute has no right to assume that children to whom the book might come would
We find no error in the manner in which the judge dealt with the defendant’s motion, or in his rulings.
Exceptions overruled.