43 N.Y.S. 571 | N.Y. App. Div. | 1897
The defendant was convicted under section 385 of the Penal Code of the misdemeanor, of maintaining a public nuisance. The nuisance consisted of the public performance, .in a theater in this city, of a pantomime called “ Orange Blossoms ” which, as the information charged, was offensive to public decency. Neither the specifications upon which the charge rested, nor the: proofs in support of the information, need be stated in detail. They may, with great propriety, be condensed, and any statement thereof limited to the facts essential to a proper understanding of the questions presented for decision.
The pantomime commences with the scenic representation of a bed chamber, to which a bride and bridegroom resort, late upon the night of .their wedding day. They are accompanied by the bride’s parents. After the clock strikes twelve, the parents depart and the young couple are left alone. " The husband then falls on his knees before his wife. She raises him up, and, as she complains of a headache, he takes her to the bed and suggests that she lie own. She requests him to leave the room. He refuses, declaring that they are married. She insists, however, and. takes him to the door. There he puts his hand up to indicate that he will be back in five minutes, and then he goes out. The woman then proceeds foundress herself completely and to put on her night gown. She apparently removes even her slippers, garters and stockings. In removing her clothing, however, she dexterously limits the exposure of her person. When she is entirely prepared to. retire, she gets into bed and turns down the light. At that moment, there is a knock at the door and she says “ Entrez.” Upon this, the curtain falls. The word “ entrez ” is the only word spoken throughout. The rest is dumb show.
It is apparent that the. one all-pervading feature of this performance is its suggestiveness. Take that away and nothing is left; that is, nothing which would be in the least likely to draw an audience. The story told would then become vapid and meaningless. What the representation essentially suggests is indecency. It is permeated with that character throughout. To suggest that is its single idea and purpose. It is that which it presents to the eye, the mind and the imagination. The picture is unmistakable. Plot and action unite to color and emphasize it.
It remains but to consider briefly two positions taken upon behalf of the defendant.
The first is, that public decency was not offended because the actress who played the part of the bride exposed but little of her person.
Second, that the suggestiveness of the exhibition was connected with lawful marriage and not with illicit relations.
As to the first position, we need only say that the test to whicli reference has been made embraces any picture which tends to^ deprave and corrupt the morals of those whose minds are open to such influences; and that in applying this test regard is always had to the idea conveyed. (U. S. v. Bennett, 16 Blatchf. [U. S.] 362, and cases already cited.) Such a performance as that under consideration is really more dangerous to public morals than any mere vulgar exhibition of nudity. The latter may arouse impure thoughts, but it is more apt to excite disgust.
The greater danger lies in an appeal-to the imagination, and when the suggestion is immoral the more that is left to the imagination the more subtle and seductive the influence.
The appellant’s second position is somewhat startling. Its logic would justify an advance into even a grosser domain than that of
The judgment should be affirmed.
Van Brunt, P. J., Rumsey, . O’Brien and" Ingraham, JJ., concurred. •
Judgment affirmed.