11. Reigen
box 19/1
11
to distinguish between plays and printed matter.
This is borne out bythe fact that subdivision 2 of
Section 1140-a specifically forbids -he use of certain
themes for dramatie presentation, whereas the Pe¬
nal Code is silent as to a similar ban with respect
to books.
In New York City, Edouard Bourdet’s“ The Cap¬
tive“, a play dealing with Lesbianism, was never
attacked in book form. The edition published by
Brentano’s was freely circulated; but the stage pro¬
duction was suppressed by the police. An injune¬
tion was sought to restrain the authorities from in¬
terfering with the play. In Liveright v. Banton, Mr.
Justice Mahoney of the Supreme Court, New York
County, in a lengthy opinion (see New York Law
Journal, March 9, 1927), refused to grant the in¬
junction. Whereas it is conceivable that, under
Section 1140-a some question might be raised as to
an American stage production of“ Reigen“, its legal¬
ity under Section 1141 in book form must be be¬
vond question.
This Is a Criminal Case and Must Be
Tested by the Rules Applicable to All
Criminal Cases. The Burden Is Onthe
People to Establish That“ Reigen'' Is
Criminally Obscene Beyond Any Rea¬
sonable Doubt.
The fact in issue here is not whether or not the
defendant has committed an act, but whether the
act itself—that is, the book—violates the law. The
defendant starts in with a presumption of innocence.
The book is presumed not to be obscene. The gov¬
ernment has the burden of overcoming this pre¬
sumption and establishing the obscenity of the book
Cto a moral certainty“.