122 Misc. 329 | N.Y. Sup. Ct. | 1924
The defendant, Thomas Seltzer, stands indicted by the grand jury of this county charged with a violation of section 1141 of the Penal Law in unlawfully possessing an indecent book, committed as follows: “ Said defendant, in the County of New York aforesaid, on the 22d day of June, 1923, and for a considerable time prior thereto, with intent to sell and show, unlawfully possessed a certain obscene, lewd, lascivious, indecent and disgusting book entitled ‘ Cassanova’s Homecoming.’ ”
The contents of the book itself are not set forth in the indictment, though for all purposes they may be considered as part of it and as fully set forth therein. People v. Kaufman, 14 App. Div. 305. The defendant demurs to this indictment upon the ground that the facts stated do not constitute a crime. Code Crim. Pro. § 323, subd. 4. The question, therefore, presented for my determination is, is the book in question as a matter of law not obscene? or, is the character of the book such that it raises a question as to its obscenity to be determined by the triers of fact? If the book as matter of law is not obscene, the demurrer must be sustained; otherwise it must be overruled. The section claimed to have been violated by the defendant reads as follows:
“2. Prints, utters, publishes, sells, lends, gives away or shows, or has in his possession with intent to sell, lend, give away or show, or otherwise offers for sale, loan, gift or distribution any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication and principally made up of criminal news, police reports or accounts of criminal deeds, or pictures or stories of deeds of bloodshed, lust or crime; or who
“3. In any manner hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section or any of them,
“ Is guilty of a misdemeanor, and upon conviction shall be sentenced to not less than ten days nor more than one year imprisonment or be fined not less than fifty dollars nor more than one thousand dollars or both fine and imprisonment for each offense.”
That section does not attempt to define the meaning of the
The defendant’s counsel contends for the proposition that the statute is only directed against lewd, lascivious and salacious or obscene publications, “ the tendency of which is to excite lustfu and lecherous desires,” quoting as his authority for that definition the learned opinion of the Appellate Division of this department in People v. Brainard, 192 App. Div. 816, and the opinion of the Court of Appeals in People v. Eastman, 188 N. Y. 478. It is true that the prevailing opinion in the former case did state the above as the sole test of obscenity, and relied in obtaining that test upon a quotation in the latter case. People v. Eastman, supra, was a review by the Court of Appeals of a demurrer to an indictment charging the defendant with having published an “ indecent ” article in violation of section 317 of the Penal Code (now section 1141 of the Penal Law). The writing complained of was an intemperate, unjustifiable and highly reprehensible attack upon the clergy of a certain denomination by a bigot of distorted mind. The court in a per curiam opinion held that such an attack was not “ indecent ” within the purview and intendment of the section under which he was indicted. Hence, however criminally scurrilous the writing was, it was not obscene, and thus the offense did not fall within those enjoined by the above-mentioned statute. Chief Judge Cullen, writing a concurring opinion, in order, undoubtedly, to emphasize that the word “ indecent ” as employed in the section relates only to obscene literature and should not be given the meaning in ordinary conversation, stated that the statute is directed against lewd, lascivious and salacious or obscene publications the tendency of which is to excite lustful and lecherous desires. It is manifest from a reading of the opinion that it was not intended to prescribe for all future times by these words a definite and exclusive test to determine questions involving obscenity. Nor was it the decision of the court, but merely the individual views of the learned chief judge. As a conclusive indication that it was not the intention of the court by an individual concurring opinion to repeal, override or modify the views expressed in People v. Muller, 96 N. Y. 408, which is the leading authority in this state upon
With due deference to the learned Appellate Division, my view is that the test which was applied in the prevailing opinion in the Brainard Case, supra, if accepted by the courts as the sole test in, determining an infraction of section 1141, Penal Law, is so narrow and restrictive as to render this very salutary section practically inoperative and of only partial functioning efficiency. I regard the logic of the minority opinion delivered by Mr. Justice Dowling as more definite and all comprehensive and more in harmony with the spirit and purpose of the statute in question. The lack of symmetry of prior interpretation and a misapprehension of a decision by our highest court, due in a large measure to the human difficulty of dealing with the abstract as well as the breadth of the section’s scope, have left the subject in what I consider a confused state, justifying, perhaps, a brief résumé of the principles and considerations useful to its interpretation. The inexactness of the law as a science is never more pointedly instanced than as here, when it is sought to chisel from abstractions of legal survey precise and mathematical-like rules for the analysis and admeasurement of the concrete. The important but not sole test, as approved in the Muller Case, supra, taken from the case of Regina v. Hicklin, L. R. 3 Q. B. 369, is one that I think should in part .guide the law-enforcing authority and a court and jury in determining whether book offends the law against obscene publications, namely: “ Is the tendency of the matter charged as obscene to deprave or corrupt those whose minds are open to such immoral influences and who might come in contact with it? ” keeping in full view the consideration that the statute looks to the protection not of the mature and intelligent, with minds strengthened to withstand the influences of the prohibited data, but of the young and immature, the ignorant and sensually inclined.
I am asked to consider as evidence of current opinion that the book in question is a distinct contribution to our literature and as not savoring of obscenity that it has been accepted in other countries. And I am asked to consider also a number of comments made by literary critics that the work has distinct literary merit. Acceptance in other places than our own of a publication is of no importance to us unless the moral standard of these other countries is a replica of our own. The critics’ views may engage the attention of those frequenting their own sphere: They are valueless, however, as successful opposition to the attack of the section. Their opinions are inadmissible at a trial. They frequently look with a single
“ So may the outward shows be least themselves;
The world is still deceiv’d with ornament.
In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice,
Obscures the show of evil ? * * *
There is no vice so simple but assumes
Some mark of virtue on its outward parts.”
We, therefore, cannot accept a book’s adoption by another land or the approval of critics as conclusive of non-obscenity under the statute, for we may assert with pride — though not boastfully — that we are essentially an idealistic and spiritual nation and exact a higher standard than some others. Aside from the purely spiritual and idealistic viewpoint, the enforcement of this section is of great materialistic concern to our government. The future of a nation depends upon its youth. Our more enlightened conception of the need of protective measures to preserve our youth is reflected in the great progress that has taken place in recent years in the enactment of laws for the protection of the health of our women and children to save them from exploitation by the- unscrupulous employer, and even sometimes, though rarely, the unscrupulous parent, in order that the child may become a healthy and useful citizen and the woman preserved for motherhood. We have the compulsory education laws; we have the laws prohibiting child labor, and when children are permitted by law to work we limit their hours of employment; we have the laws limiting the hours women may toil, and others prohibiting them from working in factories during the night time; we have laws insuring proper sanitary conditions under which they may be employed, the Widows’ Pension Law and many others, here unnecessary to enumerate, of the same purport.
And while their enactment was actuated largely by our enlightened conceptions of social justice and motives altruistic,
The meaning of the section to the ordinary mind defies misunderstanding. It deals with subjects which are felt, understood and appreciated by the layman. Instantaneous is the reaction,y instinctive the revolt to better feelings when disregard occurs.1 It addresses itself largely to the good judgment, common sense, knowledge of human nature and its weaknesses. For this reason,; there can be established no absolute test to guide those responsible^ for its enforcement. No sentence, paragraph or opinion can set forth adequately and completely all the elements to be considered and the prevailing considerations to be applied. Moral standards of thought are not of static or plastic nature. Thought once accepted, of course, may to-day be repelled. It follows that the current opinion as to whether or not a publication falls within., the prohibitions of the section may better be ascertained by a jury of varied occupations and of different experiences, yet all in touch with the currents of views and opinions. As was said in People v. Muller, supra, the question whether a writing “ is obscene is one of the plainest that can be presented to a jury, and under the guidance of a discreet judge there is little danger of their reaching a wrong conclusion.”
To summarize the general, though not exclusive, rules as aids to interpretation: The penal provision prohibits the publication of lewd, lascivious, salacious or obscene writings the tendency of which is to excite lustful and lecherous desires; likewise it prohibits the publication of those writings whose tendency is to deprave or corrupt minds open to immoral influences and who might come in contact with it. It is also offensive to the section if the matters
After a reading of the book in question, applying the principles of interpretation above set forth, I refuse to hold as a matter of law that the book is not offensive to the Penal Law, section 1141. To declare the law and the means and methods of its application constitutes the boundaries of my province in this opinion. My view is that the publication is of such a character that both the l state and the defendant are entitled to the opinion of a jury as to its alleged tendency toward depravity and corruption of mind. My decision is not to be regarded or understood as a declaration of finality; that v.ould be a usurpation of the jury’s powers. A charge has been made by a grand jury. That accusation is to be decided under the guidance of certain rules of law. Those I have tried to emphasize and explain. The trial jury must test the book by the application of the rules. Only in this way can a charge of crime be decided. The demurrer is overruled and the defendant given leave to withdraw the same and plead to the indictment.
Ordered accordingly.