*1 243 PEOPLE V. EASTMAN. APPEALS, OP COURT Mаy, 1907. L. A. NEWTON EASTMAN.
THE PEOPLE v.
(188 478.) N. Y. Code 317
Indecent Publications—Penal § Code, The word indecent as used 317 of the Penal relates to obscene § points publications. attempt but it regulate It is not an manners penalties imposed upon phases a declaration of the various therefore, publication body attacking the crime of obscenity. A vile, reprehensible Christian not clergymen, although scurrilous lewd, lascivious, indecent and has a tend- unless it is salacious or obscene ency to excite lustful and lecherous desire. Affirming App. Div. 922.
Appeal from a Divi- and order judgment Appellate sion of the Court in the fourth Supreme judicial department, entered December 8, 1906, affirmed judgment Monroe Court a demurrer an indictment County sustaining defendant with crime of charging and having selling his рossession intent to indecent sell printed character. so facts, far as are stated material, opinions.
Howard H. Widener and for J. Warren appellant. Stephen The statute itself de of the offense and does not descriptive scribe or to define attempt what forbids indecent, printed Muller, matter of an character.” indecent v. 96 Y.N. (People Hicklin, Q. 408; v. L. Regina R. 369.) [3 B.] Albert H. Stearns referred respondent. to in the indictment within the meaning intendment of section v. the Penal Code. Mul (People ler, Allen, 96 Y. N. 408; People Misc. Rep. 120; U. S. Hartwell, Wilson, 6 Wall. U. 396; S. 58 Fed. 768; Rep. REPORTS, NEW VOL., YORK CRIMINAL *2 Most, Smith, 171 Y.N. 423; S. v. 11 U. Fed. Rep. U. S., Bennett, U. S. v.
663; 16 Blatchf. 338; 165 Dunlop U. S., U. S. 486; Swearingen U. S. 447; U. S. v. State, Wrightman, 29 McJenkins v. Rep. 636; 10 Ind. 140.)
Per Curiam. The is court of opinion set forth indictment is improper, intemperate, unjustifiable “ ” and highly reprehensible, nevertheless it indecent as not that word is in section employed Penal Code.
The definitions given standard not by lexicographers its controlling deciding as signification; many meanings legal used in conversation are also ordinary irrelevant. Section of the Penal Code is found in VII, chapter “
headed as follows: Indecent Obscene Exposures, Exhibitions, Books and Prints, Other Houses.” Bawdy Disorderly Section 317 opens follows: 317. Obscene prints. § 1. A who person lends, or sells, or gives shows, offers away sell, lend, or has in give away, or his in- show, possession, tent to sell, lend, or or to or give show, advertises in away, any or manner, who otherwise offers for sale or loan, distribu- gift, tion, obscene, any lewd, lascivious, indecent or filthy, disgust- ing book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, or or photograph, figure image, any ” or written matter of printed an indecent character; is clear from the manner in which the has legislature used ” the word indecent that it relates to obscene prints publi- not an cations; attempt regulate manners, but it is a declaration of the penalties imposed upon the various crime of phases obscenity. word indecent is used in a limited in this sense connection and falls within the maxim of noscitur a sociis. and order judgment from appealed should be affirmed.
PEOPLE V. EASTMAN. opinion majority Ch. J. I concur Cullen, fall within the does the article court, complained under which the Penal Code, of section 317 provisions makes which section it misdemeanor was indicted, defendant “ obscene, lascivious, show lewd, sell, filthy, give away etc. That indecent or book, paper picture,” disgusting article and vile on a is a scurrilous attack respected large Christian That body clergymen unquestionable. ” from is entirely consideration every propriety clear, not the condemned indecency *3 the Code. The indecent preceding punishes exposure the next section the sale person, of articles for indecent or im- The moral use. in which all the are found chapter sections entitled exhibitions, Indecent obscene books and exposures, other prints, houses.” From con- the bawdy disorderly text of the statute it is that it is apparent lewd, directed against lascivious and salacious the publications, tendency which is to excite lustful and lecherous That such desire. not the effect is clear from publication the fact that my brother who writes the it opinion full, dissenting publishes and I am he certain believe that did the entirely the article lecherous he find no salacious, would justifi- cation for its in the fact that the publication the majority court, from whose ‘decision he feels constrained en- dissent, tertain a view. case cited contrary English my brother no part but improper reproduced, is confined to a statement its report character. general I regret publication should reports appear this court, not because I deem lewd, it but because I feel that of this reports court should not made the means of per- а scurrilous wanton slander on class of petuating This community. to which sec- of the extent example tarian animosities lead a weak and religious disordered may mind, for it mere consider character such charity REPORTS, VOL., NEW YORK CRIMINAL however, the article is Since, of the writer of the production. that have its with many challenge comparison appear, may Mormon church. been Surely, publica- published attacking now church have far the article tions as that beyond gone while Mormons, before is no they us. It answer to-say to such strictures. subject practiced polygamy, justly in- on the truth or has no bearing guilt of the writing falsity section of the Code. If nocence of defendant under this not made, had against contained in this article been charges a a class a that individual individual, but against single if would, false, have been doubtless, not layman, clergyman, if contended that true it was libel. would not be But it gross to the should subject party writing penalties the Code. prescribed by amenable does not follow the defendant is necessarily no article against being punishment. charges an action for could maintain class,
whole no individual single Buel, 12 its author Johns. libel 475), against (Sumner for libel. a criminal so, however, regards prosecution on which libel is made crime is The foundation theory *4 it to libeled, excites them that passions persons by provoking a criminal Therefore, and a breach of the prose violence peace. lie, no civil action would for can sustained where be cution is a class where the libel against this instance, case, very Concord, Buel, H. Palmer N. City supra; (Sumner and also the case of 44 Kan. 211; Brady, 435), State It be urged ques libel a deceased person. may against for an indecent be tion defendant prosecuted whether the should is far libel one. This or for a technical very publication- careful have the state the fact. So people from being to subject freedom speech, only punishment been to secure abused, freedom has been that found that that has when jury since that of state, of this ever Constitutions the various for in a libel the that prosecution enacted has been expressly it V. PEOPLE EASTMAN. have and the shall the right in evidence jury
truth may given no fact. This to law as well as the applies to determine criminal othеr prosecution. for was indicted The defendant J. (dissenting).
O’Bbien, an inde- matter of certain printed sale exposing selling called was in newspaper The cent character. the Penal Code section 317 By The Worker.” Gospel have in sell, possession, misdemeanor or to it is made a matter of written sell, printed or to publish, intent to indecent character. that indictment the ground
The defendant demurred at the demurrer sustained not a crime. The it did state have and the Division trial court and at the Appellate review is to this court. The decision under appealed referred to in indictment and set out effect paper and, is not of an indecent character therefore, at length think the courts within statute. In this I below respect it would bе difficult to error, since, opinion, clearly my more indecent and more immoral. It so writing compose any the rec- that, it unfit opinion, appear upon my as a ords of this court and would not this part opin- appear and in itself ion for the contention at bar the court except if then must be in course, not, that it is not indecent. Of the records of error in that it is unfit to appear supposing allow for itself; court. we must Therefore, speak writing and here it is: Open The Doob to Hell box. It is hell’s Is the confessional gate. mainspring of hell. embodiment and focus the virus
lust. very runs from the in hell. corpse pus very *5 is the and rottenness It ages. is decay It the pollution lust, reservoir of of vile and thought recipient, cesspool, of sexual communication, birthplace criminality, adultery, REPORTS, VOL., NEW YORK CRIMINAL with men’s wivеs and and the convent is young girls, earth’s terminus and lake of fire hell, dumping-ground. the criminal The mother of college. The author prostitution. From it emanates pauperism. our poison society, homes, schools and government. in love. speak Ho time to trifle. The Anaconda is itself over drawing threshold and many sting- thousands ing to death. Hark! A voice tomb, from the blood of the innocent in what out, sense is crying the confessional box needed ? The Word If God we con- says, John, fess our He is sins, faithful and ust our sins and to j forgive cleanse us all from You direct to God unrighteousness. go Jesus Almighty Christ to your confess sins. Hot through concealed and secluded alone. with her Ho wife can place go husband. Here the asks vilest priest questions, course husband could not be He the mоst asks present. delicate and intimate But under what obligation questions. one to a ? has into a box any, What business he priest got go and ask delicate female no minister Jesus questions Christ or here in true earth ask? would gentleman Bight the confessional box become have been ruined, many many mothers as a result; men, money your you paying priests to a church your daughters ruining the affections he stealing wife, until knows more about of your her than husband, do. has from you She secrets many kept you, but not from reader, true, that licentious This is all dear priest. and can be it not well proven thousands witnesses. May be called the open door to hell ? Last month a dear gave brother work Worker to he was at Gospel some where the place in this articlе, It was the city. with the January number ‘ Break open Doors and Look much ex- In,’ it caused citement. could threats and curses and two Bloody were made, all were so it. sleep stirred over truth night, they Was one ever benefited in to the confes- any way by going ? sional box ? advice need to that secret If why go place *6 PEOPLE V. EASTMAN.
Dear Jesus Christ never instituted the confessional. reader, Would he call men lustful, licentious, low, to ask such drinking vile which are one ask ? another questions, unbecoming any I am sure no and see awfulness of the it. You you say begin as well confess to a The Roman dead Church teaches might dog. cannot be saved to a you unless confess Read this priest. ‘ from their own shall If teaching: say priests who are mortal sin have not the power binding loоsing, or that are the ministers of let him absolution, priests only be accursed.’ This does with Jesus’ blood. makes God away second fellow in box. teach that the confessional They sin, the vilest and most man and every lowest, criminal, the woman, must be do not teach it confessed to the They priest. the Notice, but to do this takes necessary repent, penance. place Penance and confession to a wicked repentance. priest to salvation? necessary Is there person any intelligent earth who believes it? what L. following Margaret who Shepard, was for Arno’s three inmate Court years Convent, Bristol, a confessional the Eng., ‘In says: depth corruption There is reached. womanly degradation seeds of hell are soul. of а planted thoughts young Her heart girl polluted. her mind becomes polluted, familiarized with the most sins of The les- revolting impurity. sons engraved in heart, soul, memory, thought, like sear of a red-hot iron, leaves its confes- scar. sional unmarried and married women accustomed young get to hear and without a which would cause repeat scruple things even a fallen woman to blush.’ of one These are the words who has been the above and from their murderous through escaped hands. will close with clincher and the above. It positive evidence and witness of all I have said. All unite with me will above prayer deceived open eyes many and come Romanists blood of Christ. L.U. A. EASTMAN.” *7 REPORTS, VOL., NEW YORK CRIMINAL
If this not of an character within indecent paper of the then as I prohibition statute, it to impossible, think, conceive of printed.matter would be. any that It would seem to be a work or to cite in supererogation authorities, argue, support so vile and as proposition writing nasty be is of an appears indecent since there character; but appears difference of some on the whether opinion point, or indecent will add that no court writing not, has ever held that such a could be but at indecent, anything all least as I understand decisions, them, hold that such a is an paper publication. indecent Muller Judge Andrews, N. Y. (96 408), “ of section speaking The words in the statute says: used are themselves descriptive. are words common use and They every their person ordinary understands intelligence meaning and, and in most cases them readily accurately, applies subject thing brought his attention which involves a judg ment as to the does quality indicated. not an require expert art literature to determine whether a is obscene or picture indecent, or whether printed words offensive to decency morals.” good article Reading then apply ing the common-sense test down laid by Judge Andrews, it difficult see how could be better defined than as indecent an A few publication. definitions however, may, given “ ” word indecent used defines Worcester lexicographers. “ unfit for something ears.” unbecoming! eyes “ defines Century it as obscene or Dictionary grossly vulgar; unbecoming, violating unseemly, propriety etc.” behavior, it as language, Imperial Dictionary defines “ that which is actions or manners.” unbecoming language, In the case United States v. (12 Rep. 671) Loftus “ ” “ states that the term indecent than more opinion signifies ” less than indelicate, and that it means immodest; something or ear.” unfit for the eye EASTMAN. V.
PEOPLE of falling be some danger there may this statute In reading ” as with synonymous of construing error into an in connection lascivious,” etc., it, used lewd, from its section, appearance language examination dis- time, of 1881 to the present clearly Code in the original reference does have any word closes that the necessarily or indecent morals. The is against prohibition publication. Q. defendant v. Hicklin R. 360) Reg (L. B.] [3 *8 a book entitled misdemeanor for with
charged selling of Eomish the Unmasked; Confessional the depravity showing the of Confessional the Priesthood, questions the iniquity the to females in C. put writing Confession.” Oockburn, J., “ The reason why opinion very the sustaining charge, says: Eoman this work the forward to the expose is put practices Catholic Confessional of questions, involving the tendency do to mis practices certain propensities description, addressed, chief in the minds of those to whom such questions desires which otherwise would by suggesting thoughts case between the have occurred to their minds. If that be the be the must priest equally person confessing, manifestly into so when whole a series put shape para each some upon another, involving impure graphs, following and un some them of the most practices, filthy, disgusting * "" * We natural to imagine. description possible have is a it, therefore, that the itself breаch publication law.” to that case distinguish It would seem to be impossible from the one bar. at Com. v. Brannan R. (L. PL]-) Steel [7 dealt
was involved as to defendant’s guilt having be from of Eoman to extracts works printed purporting of the confessional. Catholic casuists on the subject divines and had before a been A conviction having police of misdemeanor to the Common on review Pleas. the case came magistrate REPORTS, VOL., NEW YORK CRIMINAL counsel appellant’s asked: What effectual remedy there in the hands to persons wishing suppress system they conceive to he pernicious, except expose of such % To system J., C. There is Bovill, answered: no all doubt that matters of be made importance society may of full and subject discussion, free оf such liberty while discussion it must not 'be into preserved, allowed to run and to be conducted in a manner cor- obscenity which tends to rupt morals. The effect of the public probable of this book being prejudicial public decency, morality be must taken to have conse- appellant intended natural of such even the book were quences publication, pub- though * * * lished referred Dis- object counsel. cussions public decency depraving tendency offensive are not privileged.”
In United States v. Bennett (16 Blatchford, Judge 338), refers with to the Blatchford approval language Judge Clark follows: case as charging jury Maywood immodest, A booh is indecent which is unbecoming, unfit *9 seen. A book which is to or before, as have said obscene, оr lewd, or or lascivious, in whole or in in its indecent, part, or in or in general scope its or its tendency, plates pictures, falls of the of reading matter, within the the scope prohibition statute.” in Judge Daniels, v. Muller Hun, (32 says: 209),
“ The statute has not described within its particularly what, intent and should be considered or indecent. purpose, But as these words are words well-known significance, must been have intended in the enactment by legislature, law, this use them in their sense and under- popular ** * And as standing. the statute has this general given of the definition character of the acts the offense, constituting it must have been that the necessarily designed pic- drawing, ture, or should be photograph writing exhibited to and observed V. EASTMAN.
PEOPLE fact, as a matter to determine for them by jury or not whether they sense judgment, of their exercise good * * all The question indecent. were obscene upon is the impression produced must what be, these cases referred or picture writing observing minds perusing by de- as and one is competent indictment, person another.” termine that as case is in this the demurrer presented by only question not inde- is, law, matter of
whether as the writing question was held has arisen it cent. In all cases where the question to de- to the jury that the must submitted writing picture used the words or not; was indecent cide whether fact it .that un- to be taken in the statute are themselves descriptive, sense and that question derstood in such upon popular This of another. as that is as one opinion person good just upon hold, law, writing, as matter of court asked That, indecent is not an publication. reading inspection, must be determined which as seems fact me, question character under instructions. by jury, proper person its effect, writing, said, cannot be and hence it another, as to decide as competent prohibition it is not within the law, statute. defend- 522) In United Bebout Rep. States (28 a Federal statute against publications
ant was indicted under the jury in charging of an character.” The trial judge indecent unfit decent; as something defined the term has There test heard.” He then said: be seen or class of courts often been applied approved inde- is obscene determine whether cases to *10 publication It is to. before referred of the statute within the cent meaning and corruрt is to deprave the matter whether the tendency influences, minds are to such the morals of those whose open fall. Hnder of this sort may whose into publication hands REPORTS, VOL., NEW YORK CRIMINAL n these whether the definitions, matter set out the indictment is a of fact indecent, for deter- question mine.” unable to concur in the am, therefore, views of the ma- It is true that
jority. brethren have considered it my necessary to denounce almost question upon every conceivable ground impropriety, except ground before the that is an presents only court, question the statute. has publication within been character- paper ized harsh names do by not, least, that solve the very only arrived the con- presented by at appeal. Having clusion that it not an indecent it is of little publication, very what else be. The feature of the consequence may important case is that, the conceded found in the notwithstanding iniquity defendant, what to me to be writing, by appears very strained and artificial construction is allowed to es- act, of his cape nor is the much punishment; situation helped by very is a criminal libel and suggestion paper public should have indicted the crime prosecutor defendant instead of the one in the indictment. The defendant is charged much that he has injured very suggestion published libel instead of an since we all know that he indecent paper; now be of Limitations from may Statute protected by prosecution such a charge. should be reversed and the demurrer overruled. judgmеnt T. JJ.,
Edward Hiscook Bartlett, Vann, Chase, J.; concur with curiam Haight, Ch. Cullen, opinion, per J., J. concurs with O’Brien, affirmed.
Judgment
PEOPLE V. EASTMAN. -—WHAT PRINT OR INDECENT OR OBSCENE IS AN NOTE PUBLICATION. indecent, prevent circulation of policy of the law It sort, every printed on the obscene, lewd, matter of lascivious young corrupt are sus- ground and those who of its purpose, ceptible 317 of For such influences. is an indecent Y. Penal Code enacted. To determine what N. meaning print of statutes obscene within the question prohibiting sale, an- difficult their circulation and is a “ obscene,” indecent,” lewd,” swer. The construction terms “ lascivious,” mails, applied deposited in to matter well topic Matter, infra„ settled. See Mailable FOE, QUESTIONS COURT AND JURY. obscene, question published is whether the matter indecent and People, following was held сases to be one of law: McNair v. 441; State, App. 1; McKee, Ill. Smith v. 24 Tex. State v. 73 Conn. Ct. 18; Swearingen S., v. U. 161 U. 446. S. following obscenity question But in the cases the was considered a jury: People Muller, 408, of fact for the v. 96 N. Y. 2 N. Y. Crim. 375; Wye, 229; Rep. Landis, State Van 136 Mo. v. Com. v. 8 Phila. 453; Davis, (Pa.) 326; Clarke, 500; U. S. v. 38 Fed. U. S. v. see, Smith, But S. Fed. 476. U. Landis, (Pa.) 453, obscenity 8 Phila. In Com. v. court said by feelings mankind, common sense and is determined and not learned, by publica- the skill therefore the character of a jury by for the tion determined their examination publication. OPINION. EXPERT require expert literature,” does an in art or said the court Muller, Rep. 375, 96 N. Y. 2 Y. N. Crim. to determine picture printed is obscene or whether a whether words are offensive to good decency and morals. These are matters fall within the intelligence, range ordinary jury requirе and a does not in be expert pronouncing upon before formed them.” OF INTENT. EFFECT person selling picture The intent of claimed to be indecent People Muller, and obscene was held 96 N. Y. 2 Y.N. Crim. immaterial, object
Rep. suppress since the of the statute is to publications protect community the traffic and to *12 REPORTS, VOL., NEW YORK CRIMINAL against pollution arising contamination and from their exhibition and distribution. mailing purpose or of the in obscene motive writer governs
immaterial.
It is the matter that
not the motive.
It is what
says
why
says
Britton,
writer
and not
he
S.
good society, would, tending desires, regarded if to excite lewd be as publications. Landis, (Pa.) Com. 8 Phila. 453. not,” “Whether a is obscene or said the court Peo Muller, ple 375, Rep. “may 96 N. Y. 2 N. Y. somе Crim. depend example, cases For circumstances. a medical book for the may instruction of medical men contain illustrations suitable and proper which, part work, published as a if detached and circulation, might alone for be deemed within the statute.” conveyed Where the acts and the in a described ideas book are calcu- deprave desires, by exciting lated to the morals the reader sexual S., obscene, a such book was held in Burton v. U. statute, 3893; forbidding mailing under TJ. S. Rev. of ob- scene, lewd, matter, and lascivious and it is immaterial in- conveyed prevent formation is accurate and scientific tends to dis- resulting ignorance, ease and other a ills from and that book as practitioner whole is calculated vаlue to the medicine marriage to men and women in the relation. WORKS OF ART AND LITERATURE. People Muller, Rep. 375, court, 96 Y. 2 Y. Crim. N. N. speaking art, nudity of works of said: “It is evident that mere V.
PEOPLE
EASTMAN.
great
obscenity.
sculpture
works
painting
is not
Some
represent
sculpture
painting
as all know
nude human forms.
delicacy
prudery
and ban-
which would condemn
and mere
false
objects
obscene,
sight
simply on account of their
all such
ish from
obscenity
indecency
picture
nudity.
or statue
test of
If the
impure thoughts,
suggesting
capability
then indeed all such
is its
might
representations
as indecent or obscene. The
be considered
purest
and of the most modest
presence of a
character
woman
suggest
prurient
imagination images
bearing may
behavior and
desires,
may
picture
lust,
impure
so
excite
statue
* * *
proper
obscenity
*13
A
or
test of
in
fact indecent
obscene.
statue,
painting
(is)
painting
or
a
statue
whether
motive
or
the
it,
impure,
speak,
by
pure
so to
as indicated
or
whether
naturally
spectator
impure imaginations,
calculated to
in a
excite
qualities,
attractive,
the
and whether
other incidents and
however
merely accessory
primary
purpose of
were
to this as
or
the
the
main
representation.”
expensive
Payne’s
copies
Arabian
But rare and
of
edition
Rabelais,
Eights, Fielding’s
ones,
of
J
the
of
Ovid’s
Queen
novel
Tom
works
Love,
Boccaccio,
Heptameron
Art of
the
of
Decameron of
the
Margaret
Rousseau,
Eavarre,
of
from
the
of J. J.
Tales
Confessions
Arabiс,
Alladin,
bankrupt
among
of
and
the assets
were
concern,
regarded
Co.,
Worthington
Supp.
T.
Matter of
30 E.
361,
great
specimens
as of too
value as
of fine
literature and
book
they
binding
ground
destroyed,
to
on
that
were obscene
immoral,
likely to fall into the hands of
since such books were not
subject
those
would be
to their influence.
who
PUBLICATIOES, ETC.
MISCELLAEEOUS
scandals,
Sunday newspaper,
mainly
publication
A
devoted
to the
lechery, assignation, intrigues
women,
whorings,
men and
between
regarded
general,
people
was
in State v. Van
immoral conduct
meaning
227,
publication
Wye,
within
Mo.
an immoral
136
to be
declaring
paper
disseminates a
devoted
one who
of a Missouri statute
etc.,
conduct,
guilty
scandal,
publication
shall be
of a
immoral
felony.
newspaper
circulation and sale in Kansas
mentioned in
The
Banks,
242,
case,
preceding
56
held in
Kan.
come within
was
Re
161,
(Chap.
1891)
purview
Laws
which forbids
of a Kansas statute
largely
newspapers
scandal,
devoted
the circulation and sale
lechery,
largely,”
terms
devoted
do
held that the
etc. The court
columns,
but it is sufficient if the
of
feature,
inde-
definite
mean
number
especially
prominent
characteristic of the
matter is a
cent
publication.
VOL.,
NEW
REPORTS,
YORK CRIMINAL
gist
of the offense
committed
violation of Conn. Public
Acts, 1895,
558, prohibiting
sale,
P.
offering
sale,
papers,
books,
magazines
news,
devoted to the
of criminal
police reports,
pictures
crime,
stories
was held in State v.
McKee,
massing
73 Conn.
to be the
of such immoralities
publication,
mоtive,
paper
whatever
mainly
devoted
to such matters.
Eastman,
Rep.
supra,
21 N. Y. Crim.
it was
held
publication attacking
Church, although vile,
the Catholic
scurrilous
reprehensible,
was .not indecent within
317 of
Y.
sect.
the 3SÍ.
Code,
Penal
unless
lewd and has a
lustful and
excite
dissenting
lecherous desires. The article in
is set
out
opinion.
dissenting opinion
also contains
discussion of numer
subject
ous
publi
authorities
of what is
indecent or obscene
cation.
Cutting
seat,
the words “ass hole work” in
of a
the back
church
State,
App. 1,
was
Smith
held
Tex. Ct.
an indecent
publication.
women,
photograph
A
taken
nude
and afterwards delivered
pay,
Doty,
them for
held
State
Iowa
be indecent
meaning
(sect.
chap. 177,
within
and obscene
of a statute
Acts
forbidding
Twenty-first
Assembly)
gift
Gen.
or sаle of indecent
books, pictures, photographs, etc.
*14
guilty,
jury
People Muller,
By
in
verdict of
the
v.
96
Y.
their
N.
408,
Rep. 375, affirming
Hun, 209,
32
2
2 N. Y. Crim.
N. Y. Crim.
279,
copies
Rep.
necessarily
photographic
paint
found that certain
of
“
“
among
Asphyxie,”
Bath,”
ings,
which
La
After the
La
were
females,
Baigneuse,” representing
defendant,
nude
sold
the
were
pro
within sect. 317 of the Penal
indecent
Code which
obscene
book, writing, paper,
the sale of an obscene or an indecent
hibits
drawing,
picture,
photograph.
or
supposed
pictures illustrating
drinking
of
the
evil effects
Certain
drinking
brand,
company’s beer,
good
certain
and the
effects of
another
313,
vulgar,
Pfenninger,
regarded
App.
76 Mo.
to
in
v.
be
State
foul and obscene.
age,
years
young
21
of
as
a letter
to a
woman
follows:—
But
written
powder through
Stay
I have secured
with me after school.
her,
safe,”
to no
held
will
and shown
mail that
make
(Tex.
App.)
State,
v.
Crim.
85 W.
as not
Edwards
S.
mani-
designed
festly
youth,,
corrupt
to
of
within Art. 365
the morals
making,
Code,
prohibits
publishing
Penal
Texas
or
Y. EASTMAN.
PEOPLE
259
manifestly
print
picture,
or
de-
any
printing
and obscene
youth,
young woman was not
corrupt
signed
since
the morals
to
contemplation
youth
statute.
within the
OF INDICTMENT.
SUFFICIENCY
necessary to
may fairly
is not
to
rule that it
be said
be
settled
grand jury
be
asserts to
set
matter
out
in an indictment which
identify
necessary
the obscene
only
to
too
for
It is
obscene
recital.
what
sufficiently
appraise
defendant
book
particular
obscenity, giving
intended,
an
its
book
and to aver
gross as
setting
is so
matter that it
excuse for not
forth the obsсene
upon
placed
its
improper
records.
court and
be offensive
371;
Smith,
Kaufman,
App.
305;
People
17 R. I.
v.
14
State v.
Div.
441;
Brown,
People,
619;
v.
89 Ill.
Com.
v.
Vt.
v.
State
27
McNair
91;
Serg.
(Pa.)
Holmes,
336;
Sharpless, 2
v.
Mass.
Com.
& Rawle
17
232;
227;
Zurhorst,
Wye,
People
People
Ohio
v. Van
136 Mo.
v.
75
St.
Bennett,
(See
opinion
U.
v.
16 Blatch. 338.
cases reviewed
S.
29;
therein);
S. 311.
U.
Price
165 U.
Rosen v.
v. U. S.
U. S.
S.
uttering
following
obscene
cases
indictment
for
But
People
Hallenbeck,
prints,
sufficiently
v.
did not
describe them:
66;
Hun,
People Danihy,
579.
Abb. N. C.
Hun, 579,
People Danihy,
held
the indictment was
to be de-
alleged
portion
murrable for
to set out
the matter
be
failure
indecent,
obscene,
describing
specifically.
lewd and
instead of
point
Kaufman, supra,
of distinction between this
case
pointed
omission of
the latter as the
the indictment
out
gross
to state that
was of
former
matter
too
character
placed upon
be
the records.
MAILABLE MATTER—THE
TEST.
necessary
infrequently becomes
It not
to determine the character
etc,
article, publication, picture,
prosecutions
depositing
Office,'
obscene,
and lascivious
in the Post
lewd
violation
every obscene,
Statute,
U. S. Rev.
which declares that
writing,
book,
paper,
lewd,
pamphlet, picture,
other
lascivious
hereby
publication of an indecent
. . . are
declared
character
matter.”
nonmailable
*15
“
“
“
lewd,”
obscene,”
lascivious,”
and
as used
words
in this
S.,
446,
signi-
statute,
Swearingen
in
U.
161
construed
v.
U. S.
as
immorality
fying
impurity,
form
which has relation to sexual
given
meaning
prosecu-
at
in
as
them common law
and have
same
language,
libel,
do
and therefore
not extend
for obscene
tions
although
vulgar
libelous,
exceedingly coarse,
plainly
may
if
and
REPORTS, VOL., XXI.
CRIMINAL
YORK
NEW
tendency calculated to cor-
lewd,
and obscene
lascivious
has not
in
article
and morals. The
the mind
rupt and debauch
dissenting judges.
suggestion
447,
page
at the
added
(a
Bennett,
por
connection,
also,
v.
16 Blatch.
U. S.
In this
see
Rep. 284), which
appears
in 2 Y. Crim.
a footnote
N.
subject.
of which
as
tion
test
leading
case the
on the
is one of the
authorities
matter is
was
as follows: It is whether
laid down
open to
are
deprave
corrupt
whose minds
the morals of those
may
influences,
kind
of this
and into whose hands a
such
Bebont,
applied
of a letter directed mother, as the writer’s a violation the Federal statute. Lamkin, 459, infra, also U. S. v. 73 Fed. See with reference to a meeting purposes. sent to obtain a letter immoral -NON MAILABLE. by aBut letter written a married toman a married woman he had met, hoped stating that he the letter
never would come to her as day, ray cloudy of sunshine that if she cared to meet him no one it, they pass pleasant together, would ever know that could afternoons lady keeps was an old as there he knew who rooms to rent for such meetings. recipient go lady The letter directed the where this (the recipient) and tell her gentle- lived that she wished to meet a ” there, requested man friend about twice a week. The letter further go place, her to sit the front on, window with her hat so writer him, would know she was there and wanted to see opposite up he would come and that tip side of the street and his her, him, saw recognize hat when he so that she would and so meet top of at the This him stairs. letter was Moore, in U. held S. v. meaning 129 Fed. to be obscene within the statute, of the Federal purpose of the letter as the invitation and solicitation to meet for sexual intercourse. the writer Martin, in U. S. v. 50 Fed. And the letter was. written *17 REPORTS, VOL., XXI. CRIMINAL NEW YORK woman, of which was an man to unmarried the substance married expense trip he would her him take on a invitation besides, suggestion that, you give “ if pay with the her five dollars go, promise This was construed to a time.” letter will nice will statute. lewd and obscene within lan or indecent do not contain lewd of letters which But series meeting guage, purpose or to obtain a of seduction fоr the but sent Lamkin, 73 Fed. purpose, in U. for immoral held S. appear in purview statute. letters within the of the to come fact. statement of description containing suggestive language An article physical appearance Woman,” Ripe idea of of the writer’s thoughts terms, coarse, thereby; description, excited rude also a Woman,” Unripe practices reference unnatural crimes, condition; among and an advertise- the causes for her ment, remedy one of which extolled the merits of a certain vener- diseases, eal and the other the Tender- addressed to the “Ladies District,” calling loin attention to stock of certain their the writer’s “ pbscene goods, Jones, line was held in U. 74 Fed. S. v. matter.” personals S., in a Dunlop See v. U. for obscene U. S. newspaper advertising baths,” etc.