Faksimile

Text

eeagnnpen enchaeehenenden ui eice.
enen e e e eeeachaen
Where defendant is aceused of violating section
Anyone who differs with his method of
1141 of the Penal Law in possession for
ing. But nowhere is there any word in
living or writing is Puritanical. With
purposes of sale an obscene book, beld, upon
such people clean thinking or clenn liv-#the translation which has a lewd or
examination of the book, that it would have
ing is Puritanical.
lascivious connotation. The appeal to
a tendenes to deprave and corrupt the minds
It is unnecessarg to set forth the ob¬
of its renders, and therefore it violates the
passion or lechery is wholly lacking.
ject of this beok except as it is set forth
Pens! Law.
While the trial court is the judge of the
in the introduction. We believe nothing
MeAvoy, J., dissents in opinion, with which
more ie neededl than the qnotation froni
facts, it may not hold as obscene that
Sherman, J., concurs.
the introduction which admits that it is
which in common speech is not within
#rfleshw.“ but so treated by Schnitzier as hhat eategory.
1to avoid that condemnation.
Maarig, J.—The information herein
The proof shows, too, that this publica¬
Pcious eyele, some may say, and
such ie surely would have been in the
Scharged that on October 7, 1929, the de¬
tion has been on sale in the book depart¬
hands of a lesser artist than Schnitzler,
fendant in the County of New Vork, un¬
ments of department stores, bookshops,
for he would have made the book
lawfully possessed a book called“Hands
and other merchandising stores in which
hideonslr fleshy, instead of a marvelous
Around,' with intent to sell and show
psychological study in the eestacies and
part of the retail business is the sale of
disillusiens of love and the whole tragedy
the same, and which was a lewd, lasci¬
bocks, It has also been advertised in the
of human wishes, unsatisfied even in their
vious, indecent, obscene and disgusting
daily prints in the city. As a play in
apparent gratification.
book.
strategems of sex are uncovered
German the work has been produced n
through the finer eyes of a connoisseur of
many large Europenn continental citie,
The-defendant pleaded not guilty to
things human.?
and has been extant for at least ten Fears
the crime charged, and thereafter on
there.
While we appreciate the fact that dif¬
November 18, 1929, was arraigned for
ferent people have different standards
We reversed a conviction for the pub¬
trial before the Court of Special Sessions.
with reference to such writings and that
lication of a book known as Madeleine.)
At the conclusion of the trial a motion
these standards are often peculiar and
which was the autobiography of a prosti¬
ditficult to understand, nevertheless peo¬
tute, and seems in its content more nearly
was made to acquit, and the court re¬
pie generally and the courts have arrived
approaching lewd and lascivions deserin¬
served decision. Subsequently and on
a: what they Snsider a fnir standurd 0y
tions than anything found here (People
December 9, 1929, the court decided that
which to judge such books, and protect
v. Brainerd, 192 App. Div., 816).
tLose who need protection.
the book Hands Around' was an inde¬
A receiver was directed by a former
In United States v. Bennett (16
cent book and that its sale constituted
justice of this court to sell Fielding’s
Blatchf., 338), Judges Blatchford, Bene¬
novel. Tom Jones,'the Works of
a violation of section 1141, Penal Law,
diet and Choate laid down a test on
Rabelais.“ and Ovid’s" Art of Love, and
obscenity as used in the statute there
one judge dissenting.
other works of an amatory nature, whose
under consideration. The court said at
On January 17, 1930, the appellant
terms and descriptions are much more
page 362: t is whether the tendency of
likely to stimulate sexual impulses than!
was arraigned for judgment and thecourt
the matter is to deprave and corrupt the
0
anpthing in the book now here (62 N. X.,
suspended sentence. For the purpose of
morals of those whose minds are open to
St. Rep., 116).
such influences, and into whose hands a
appeal. the suspension of sentence is
Recently in the federal court in
publication of this sort may fall.“
deemed to be a Judgment (sec. 517, Code
United States v. Dennett (39 Fed. Rep.,
The word lewd“ was there defined as
of Criminal Procedure). As stated
2d series, p. 569), it was pointed out
Pharing a tendeney to excite lustful
that a similar statute enacted by the
above, a motion was made at the close of
thoughts.“ and it was said that passages
Congress, designed to bar from the mails
in a book are "indecent within the mean¬
the case to acquit and set aside the de¬
obscene publications, was never thought
ing of the act when they tend to ob¬
termination of the court convicting ap¬
to bar everything which micht stimulate
scenity; that is to sav, matter having the
sex impulses. It was said that much
pellant, and an exception was taken to
form of indecency which is caleulated to
chaste poetry and fiction, as well as
promote the general corruption of morals
the denial of that motion. These excep¬
many useful medical works, would be
It is not a question whether it
tions raise the question of law presented
under the ban if such were the rule.
would corrupt the morals of every per¬
Such a statute must be construed rea¬
8011.
It is within the law if it
sonably, with a view to attaining the
would suggest impure and libidinons
Onthis appeal it is consededsthaf the
general objects at which the pablic pol¬
thoughts in the minds ei the youngand
facts in the case are uncontradicted. The
icy of the state is aimed, to wit: a
the inexperienced.“
defendant Philip Pesky testified that he
prohibition of that which is obscene,
Judge Daniels in People v. Muller
lascivious or lewd.
was employed at Schulte's Book Store;
(32 Hun, 209, at 212, aff'd 96 N. X.,
We think it is no part of the duty of;
that he did not know how this particular
408) said: The question in all these
courts to exereise a censorship over lit¬
cases must be what is the impression pro¬
book came to be on sale in the store, and
erary productions.
duced upon the mind by perusing or ob¬
he sworo that he never read the book and
serving the writing or picture referred to
We conclude that the judgment of con¬
did not know its contents.
in the indictment, and one person is as
viction should be reversed and the infor¬
competent to determine that as another.?)
The appellant contends that the book
mation dismissed.
In Commonwealth v. Buckley (200
SHIERMAN, J., concurs.
Hands Around'' is not an indecent or
Mass., 346) the court said at page 354:
obscene book, hence its possession and
Descriptions of seductive actions and of
sale did not violate the law. He further
highly wrought sexual passion, even
REFEREES AND RECEIVERS AP¬
ihen sanctified by what the author has
contends that the book was written by
called ’love,' are very likely to be seen
POINTED TESTERDAY.
a well known scholar; that it contains
in another light tending towards the
ten dialogues with life of to-day; that
obscene and impure. And an author wlo
they are literary and psychologieal
has disclosed so much of the details of
Referees—New York County.
the way to the adulterous bed as the au¬
studies; that they are free from vulgar
thor of this book has and who has kept
details, with no effort to "exploit
the curtains raised in the way that she
SUPREME COURT.
prurient curiosity,' and that the book has
has kept them, can find no fault if the
no tendency “to exeite lustful and lecher¬
Jury say that not the spiritual but the
By Mr. Justice Cnusenikr.
ous desire.' In effect, the appellant con¬
animal. not the pure but the impure, is
0·Keefe
v. Corless—Hen. Vernon 11
tends that there is no recital of ang
what the general render will find as the
Davis (officlal referee).
facts which come within the condemna¬
most conspienous thought suggested to
tion of the statute.
him as he reads.?
By Mr. Justice Warsn.
It is unnecessary to recite the details
These matters must be judged by nor¬
American Trust Co. v. Dobro Realtyg
of euch episode in the cyele set forth in
mal people and not by the abnormal.
Corp'n—Philip J. Dunn
this book. The first commenees with a
Conditions would be deplorable if abnor¬
prostitute and the last ends with a pros¬
mal people were permitted to regulate
titute. The first begins with the prosti¬
such matters. Of course, there are some
Receivers—New York Connty.
tute soliciting a soldier; the second deals’people who seem to be unable to find
with a soidier and a parlor maid; thelanything obscene in anything written. It
third with the parlor maid and a young, is very clear that the author of the book
SUPREME COURT.
man whose parents are absent in the; now before us for consideration was not
country; the fourth with this young thinking of the spirirual, but devoted the
By Mr. Justice Waren.
man and a young wife; the fifth with the
whole book to the animal instincts of the
Lester Russell v. Antranik Aprahamian
young wife and her husband; the sixth
human race. His efforts were not a les¬
and ano.—Jesse Myers.
with the young husband and a sweet
son in morality. nor an attempt to uplift
By Mr. Justice VALENTE.
young miss; the seventh with this young, the mind of the reader, but an attempt
miss and a poct; the eighth with theyto depict, in a manner that might possi¬
Winter Holding Corp'n v. 279 Fifth Ave.
poet and an actress; the ninth with the
bir be called elever, adulterous relations,
Corp'n et al.—Edward R. Cohn.
actress and a connt, and tenth with the
vulgar and disgusting in the extreme.
connt back to the girl of the streets. The
While some people may think this
statements found in the book are Sufli¬
quite smart, a book of this kind, which
Referees—Bronx County.
cient to condemn it.
has nothing to recommend it, and dealing
On the very first page we are told that
wholly with such details, is properly heid

this book is intended for prirate cireula¬
to be disgusting, indecent and obscene
SUPREME COURT.
It is admitted that this book deuls with
tion onky.“ Turning to the introduction,
By Mr. Justice ConN.
a distinet type of literature, a type evi¬
which is the strongest condemnation that
this book could have, we find the fel- dentig intended for certain private con¬
Mentz v. B. S. P. Building Corp'n et al.
lowing: Humanity scems gayest when sumption. Oue sentence is suflicient to
William J. Vitale.
dancing on the brink of a volcano. The illustrate this fact: Poet: Then it’s
Brady
Siors Realty Corp'n et al.—
Four lending man—Benn0—. Actress:
culture of a period preceding a social
Louis Fabricant.
Nonsense.
IIe docsn't care for women
entaclysm is marked by a spirit of light
at all—lidn't von know that? He carries
wit and sophisticated elegance which finds
This last quo¬
on with the
expression in a literature of a distinet
ASSIGNMENT.
tation stamps the author as a man whose
But the erquisite han¬
type.
thoughts thus expressed cannot escape
ding of the licentions was elaborated
Max Goldin, trading as Jack Goldin,
being characterized as indecent.
into a perfect technique in eightecnth
No. 60 Nassau street, eigars and 1o¬
During the
century France.
There does not appear to be any Glaim
bacco, assigned Festerday to Nuthaniel!
closing years of the nineteenth century
that it is of ang valne as a literary pro¬
duction or as an intellectual treut. No L. Wellens.
a similar spirit has horered orer Vienna,