294 N.Y. 545 | NY | 1945
Lead Opinion
After trial in the Court of Special Sessions of the City of New York, the defendant was convicted upon charges that he had possessed certain printed materials with intent to sell them, contrary to Penal Law, article 106, section 1141, subdivision 2. The Appellate Division affirmed and the justice who wrote its opinion gave the defendant leave to present the case to us.
The relevant words of section 1141 are these: "A person * * * who * * * 2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute 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 * * * is guilty of a misdemeanor * * *." Numerous copies of magazines composed entirely of such pictures and stories were found on the occasion in question in the bookshop of the defendant.
Defense counsel takes the above text at its full literal meaning. "The statute [he says] makes no distinction between truth, fiction, or statistics. All come within its condemnation equally, provided they consist of `criminal news' or `police reports' or `accounts of criminal deeds'." From his viewpoint the statute "condemns any publication devoted to and principally made up of criminal news or police reports or accounts of criminal deeds, regardless of the manner of treatment." This conception — which would outlaw all commentaries on crime from detective tales to scientific treatises — may, we think, be dismissed at once on the short ground that its manifest injustice *550
and absurdity were never intended by the Legislature. (SeeCrooks v. Harrelson,
In this instance, the general subject matter constitutes Penal Law, article 106, the caption of which is "Indecency." The above text forms subdivision 2 of section 1141 of article 106. The caption of section 1141 is "Obscene prints and articles."
Indecency and obscenity are not and never have been technical terms of the law and hence we are without any full or rigorous definition of the uses made thereof in the administration of justice. To be sure, our statutes dealing with indecent or obscene publications have generally been held to speak of that form of immorality which has relation to sexual impurity. (People v. Muller,
Indecency or obscenity is an offense against the public order (9 Halsbury's Laws of England [1st ed.], pp. 530, 538; Harris
Wilshire's Criminal Law [17th ed.], p. 216; 1 Bishop's Criminal Law [9th ed.], §§ 500, 504.) Collections of pictures or stories of criminal deeds of bloodshed or lust unquestionably can be so massed as to become vehicles for inciting violent and depraved crimes against the person and in that case such publications are indecent or obscene in an admissible sense, though not necessarily in the sense of being calculated or intended to excite sexual passion. This idea, as it seems to us, was the principal reason for the enactment of the statute. (Cf. Magon
v. United States, 248 F. 201, certiorari denied,
There is, as we are also persuaded, ample warrant in the evidence for the finding that the magazines which were taken from the defendant's premises were obnoxious to the statute. The two thousand copies he kept there were tied up in small bundles that were suitable for delivery to distributors. There is proof of an admission by the defendant of his readiness to sell single copies indiscriminately. The contents are nothing but stories and pictures of criminal deeds of bloodshed and lust. The Appellate Division said: "The stories are embellished with pictures of fiendish and gruesome crimes, and are besprinkled with lurid photographs of victims and perpetrators. Featured articles bear such titles as `Bargains in Bodies,' `Girl Slave to a Love Cult' and, `Girls Reformatory.'" (
We pass now to the defendant's contention that the statute is unconstitutional because the criterion of criminal liability thereunder is "a personal taste standard, uncertain, indefinite and ex post facto in its practical operation." In the nature of things there can be no more precise test of written indecency or obscenity than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. Consequently, a question as to whether a particular publication is indecent or obscene in that sense is a question of the times which must be determined as matter of fact, unless the appearances are thought to be necessarily harmless from the standpoint of public order or morality. (See People v. Pesky,
Under the statute, as the defendant sees it, "publication of any crime book or magazine would be hazardous." For reasons that have already been stated, we believe this assertion to be an exaggeration; but the point is of little account in any event, since "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." (Nash v. United States,
In anticipation perhaps of what we have already said, the defendant lastly argues for a fresh conception of freedom of the press under which the heretofore accepted requirements of decency would no longer be operative against obscene publications. We see no immediate necessity for announcing so radical a departure from the collective reasoning of our ancestors, a position whereof we think ourselves to be assured by the following words of the highest court in the land: "Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include *553
the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (Chaplinsky v. New Hampshire,
The judgment should be affirmed.
Dissenting Opinion
I dissent on the ground that the statute, as construed by the court, is so vague and indefinite as to permit punishment of the fair use of freedom of speech. (Stromberg v. California,
The judgment should be reversed.
LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur with LOUGHRAN, J.; LEHMAN, Ch. J., dissents in opinion.
Judgment affirmed. [See
