43 N.Y.S. 1046 | N.Y. App. Div. | 1897
The defendant was convicted under section 317 of the Penal Code of the misdemeanor of selling an obscene book. He makes two points upon this appeal: First, that the indictment failed to charge a crime ; and, second, that the trial judge erred in refusing to instruct the jury upon a crucial question.
The particular objection which he makes to the indictment is, that it fails to state the obscene matter, but merely gives the pleader’s conclusions therefrom. The indictment, however, states the name of the' book, and excuses a statement of the obscene matter by distinctly averring that the book is so obscene, lewd, lascivious, filthy, indecent and disgusting that the same would be offensive to the court, and improper to be placed upon the records thereof. “Wherefore,,” it is added, “the grand jury aforesaid do not set forth the same in this indictment.”
The current of authority in this country favors an exception to the general rule of pleading in this class of offenses. It may now fairly be said to be the settled American rule that it is not necessary to set out matter in an indictment which the grand jury asserts to be too obscene for recital. It is only necessary to identify the obscene book or publication sufficiently to apprise the • defendant of what particular book or publication is intended, and to aver its obscenity, giving as an excuse for not setting forth the obscene matter that it is so gross as: to be offensive to the court and improper to be placed upon its records. (1 Bish. New Cr. Proc. §§ 496, 561; Whart. Crim. Law, §§ 311, 2547; Comm. v. Holmes, 17 Mass. 336; Comm. v. Sharpless, 2 S. & R 91; People v. Girardin, 1 Mann. [Mich.] 90; State v. Brown, 27 Vt. 619 ; McNair v. The People, 89 Ill. 441; U. S. v. Clarke, 40 Fed. Rep. 325; State v. Smith, 17 R. I. 371.) A rigid adherence, in such cases, to the ordinary rule, that it must appear upon the face of the indictment that the printed matter was
By the American doctrine and practice on this head, as Mr. Bishop points out, the avoiding of obscene allegation in the record, breeding corruption, is a necessity, excusing the setting out of the ' words. It is claimed, however, that the obscene matter should have been described, at least in general terms. The answer to this is, that if the matter is too obscene to be set out, it is also too obscene to be properly described. An accurate description of obscene matter, however general, would itself be obscene. Nothing would be gained by condensation. How, indeed, can obscenity be condensed so as to be descriptive and yet sufficiently decent to he placed upon record ? We refer now.to such a description as would enable the .court, upon the face of the indictment, to determine whether the book or publication is, in fact, obscene. Any merely general description would not be a description at all— that is, of the obscene words or matter. A mere description, for instance, of the subject-matter— of what, in general, the book is about — would not be a description of the actual obscenity charged. It would not apprise the defendant of the particular facts upon which the charge is based. It would simply be a means of identifying the hook or publication; and that is as well, if not better, effected by stating its title. ' In none of the cases which have been referred to, with the possible exception of Comm. v. Sharpless, did the indictment contain a description, either minute or general, of the nature of the obscenity, and in none of them was a descriptive statement of the obscene matter required.
The rule to which we have referred is not in conflict with that laid down in People v. Hallenbeck (52 How. Pr. 502), and People v. Danihy (63. Hun, 579). In neither of these cases was the omission of the obscene matter excused by the statement, in the indictment itself, that it was too gross to be placed upon record. We agree that, where this excuse is not made by the grand jury upon
We have, however, reached a different conclusion as to the defend-' ant’s second point. The sole question presented to the jury was-whether or not the defendant sold the book. Joel testified to the sale, as alleged. The defendant denied it, and testified that he pur-: chased the book for Joel. This was the crucial question — was it a-sale or a purchase ? If a sale, the defendant was guilty. If a purchase, he was not. The learned trial judge left it to the jury to say whether there was or was not a sale. He pointed out to them very clearly the testimony upon which the prosecution rested; but the-only reference which he made to the defendant’s testimony was that he (the defendant) had the book, delivered it to the person who went to his shop to purchase (Joel) and received a dollar from that person for it. ' He omitted to refer to the defendant’s statement that Joel gave him the dollar to go out and purchase the book. This omission is quite significant, in view of what occurred when the learned judge closed his chargó. The following colloquy was then had r “ The third juror: If the defendant sold that book merely as an agent should we convict % The Court: Certainly; if he sold it under
It is apparent from all this that, after hearing the learned judge’s charge, the third juror was still in doubt as to the precise issue to be passed tipon by the jury. It is equally apparent that the. learned judge, inadvertently, of course, made an observation,.“but he sold it,” which, if taken seriously by the jury, would have probably concluded the question that they were called upon to consider. The defendant’s counsel sought to neutralize the effect of that observation by presenting the defendant’s contention interrogatively. The learned judge, however, parried the counsel’s interrogation as to the law by some pointed observations upon the facts. The conclusion of it all left the defendant without much hope, that is, unless the learned judge should assent unreservedly to the final proposition which he was asked to charge. We think, under the circumstances, that the defendant was entitled to have that proposition specifically charged. After what had occurred, a clear statement of the precise issue, and of the effect thereon of crediting the defendant’s story, was the least that the defendant had a right to expect. It will not do to say that the proposition in question had already been charged. What the learned judge had already charged, and all that he had so charged,
We are constrained, therefore, for this error to reverse the judgment and order a new trial. ■
Van Bbünt, P. J., Rumsey, Williams and Pattebson, JJ./ concurred.
Judgment reversed, and new trial ordered.