13 A.D.2d 634 | N.Y. App. Div. | 1961
Judgment of conviction unanimously reversed, on the law and on the facts and the information dismissed. Appellant was convicted at Special Sessions on an information charging the possession of obscene photographs and picture match boxes in violation of section 1141 of the Penal Law. The exhibits on which the conviction is based are not so clearly in violation of the statute as to establish appellant’s guilt beyond a reasonable doubt. If the sensibility to pruriency of the average man of - the community in which the charge is made is to be deemed the test by which a violation of the statute is determined, we find the test not met in this ease; the photographs do not qualitatively differ greatly from these appearing in some periodicals of wide circulation in the community; in many moving picture poster displays, and in some advertisements (Roth v. United States, 354 U. S. 476). No sale or offer to sell was shown by the prosecution in this case; the testimony for the People showed the barest fact of the entry of the policeman into defendant’s premises, the exact nature or use of which was not established, and the discovery by him
