People v. Eastman

The court is of opinion that the publication set forth in the indictment is improper, intemperate, unjustifiable and highly reprehensible, nevertheless it is not “ indecent” as that word is employed in section 317 of the Penal Code.

The definitions given by the standard lexicographers are not controlling in deciding its legal signification; many meanings as used in ordinary conversation are also irrelevant.

Section 317 of the Penal Code is found in chapter VII, headed as follows: “ Indecent Exposures, Obscene Exhibitions, Books and Prints, and Bawdy and Other Disorderly Houses.”

Section 317 opens as follows : “ § 317. Obscene prints. 1. A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or show, or has in his possession, with intent to sell, lend, or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; ”

It is clear from the manner in which the legislature has

The judgment and order appealed from should be affirmed.

I concur in the opinion of the majority of the court, that the article complained of does not fall within the provisions of section 317 of the Penal Code, under which the defendant was indicted, which section makes it a misdemeanor to sell, give away or show any “ obscene, lewd, lascivious, filthy, indecent or disgusting book, paper or picture,” etc. That the article is a scurrilous and vile attach on a large and respected body of Christian clergymen is unquestionable. That it is “ indecent ” from every consideration of propriety is entirely clear, but that is not the indecency condemned by this section of the Code. The preceding section punishes indecent exposure of person, the next'section the sale of article for indecent or immoral use. The chapter in which all the sections are found is entitled “ Indecent exposures, obscene exhibitions, books and prints, and bawdy and other disorderly houses.” From the context of the statute it is apparent that it is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire. That such is not the effect of the publication is clear from the fact that my brother who writes the dissenting opinion publishes it in full, and I am entirely certain that did he believe the tendency of the article was lecherous and salacious, he would find no justification for its publication in the fact that the majority of the court, from whose decision he feels constrained to dissent, entertain a contrary view. In the English case cited'by'my brother no part of the improper publication is reproduced, but the report is confined to a statement of its general character. I regret that the publication should appear in the reports of

It does not necessarily follow that the defendant is amenable to no punishment. The charges in the article being against a whole class, no single individual could maintain an action for libel against its author (Sumner v. Buel, 12 Johns. 475 ), but not so, however, as regards a criminal prosecution for libel. The foundation of the theory on which libel is made a crime is that by provoking passions of persons libeled, it excites them to violence and a breach of the peace. Therefore, a criminal prosecution can be sustained where no civil action would lie, as for instance, in this very case, where the libel is against a class (Sumner v. Buel, supra; Palmer v. City of Concord, 48 N. H. 211 ; State v. Brady, 44 Kan. 435 ), and also in the case of a libel against a deceased person. It may be urged that the question whether the defendant should be prosecuted for an indecent publication or for a libel is a technical one. This is very far from being the fact. So careful have the

(dissenting). The defendant was indicted for .selling and exposing for sale certain printed matter of an indecent character. The publication was in a newspaper called “The Gospel Worker.” By section 317 of the Penal Code it is made a misdemeanor to sell, or to have in possession, with intent to sell, or to publish, any written or printed matter of an indecent character.

The defendant demurred to the indictment on the ground that it did not state a crime. The demurrer was sustained at the trial court and at the Appellate Division and the People have appealed to this court. The decision under review is to the effect that the paper referred to in the indictment and set out at length is not of an indecent character and, therefore, not within the "statute. In this respect I think the courts 'below were clearly in error, since, in my opinion, it would be I difficult to compose any writing more indecent and more immoral. It is so indecent that, in my opinion, it is unfit to appear upon the records of this court and it would not appear as a part of this opinion except for the contention at the bar and in the court itself that it is not indecent. Of course, if it. is not, then I must be in error in supposing that it is unfit to appear in the records of this court. Therefore, we must allow the writing to speak for itself ; and here it is:

“The Open Door to Hell

“Is the confessionabbox. It is hell’s gate. The mainspring to lust. The very embodiment and focus of the virus of hell. It is the very matter and pus that runs, from the corpse in hell. It is the pollution and rottenness of the decay of ages.

It is the cesspool,' the recipient, the reservoir of lust, of vile thought and communication, adultery, the birthplace of sexual criminality, with men’s wives and young girls, and the convent is earth’s terminus and hell, the lake of fire is the dumping-ground. It is the criminal college. The mother of prostitution. The author of pauperism. From it emanates poison to society, homes, our schools and government. I speak in love. Ho time to trifle. The Anaconda is drawing itself over many a threshold and stinging thousands to death. Ilark! A voice from the tomb, the blood of the innocent crying out, in what sense is the confessional box needed ? The Word of God says, in 1 John, 1 , 9, If we confess our sins, He is faithful and just to forgive our sins and to cleanse us from all unrighteousness. You go direct to God Almighty through Jesus Olirist to confess your sins. Hot in a concealed "and seclued place alone. Ho wife can go with her husband. Here the priest asks the vilest of questions, and of course the] husband could not be present. He asks the most delicate1 and intimate questions. But under what obligation is any one to a priest ? What business has he got to go into a box and ask delicate female questions that no minister of Jesus Christ . or true gentleman on earth would ask ? Eight here in the confessional box many have been ruined, and many become mothers as a result; and men, you are paying your money to priests and to a church that is ruining your daughters and stealing the affections of your wife, until he knows more about her than you do. She has many secrets kept from you, husband, but not from that licentious priest. This is all\ true, dear reader, and can be proven by thousands of wit-1 nesses. May it not well be called-the open door to hell? Last month a dear brother gave The Gospel Worker to some in the place where he was at work in this city. It was the January number with the article,£ Break open the Doors and Look In,’ and it caused much excitement. Bloody threats and curses were made, and two could not sleep all night, they were so stirred over the truth in it. Was any one ever benefited in any way by going to the confessional box ? If it

is advice yon need why go to that secret place? Dear reader, Jesus Christ never instituted the confessional. Would he call lustful, licentious, drinking men to ask such low, vile questions, which are unbecoming for any one to ask another ? I am sure you say no and begin to see the awfulness of it. You might as well confess to a dead dog. The Roman Church teaches you cannot be saved unless you confess to a priest. Read this from their own teaching: ‘ If any one shall say that priests who are in mortal sin have not the power of binding or loosing, or that priests arc not the only ministers of absolution, let him be accursed.’ This does away with Jesus’ blood. It makes God second to this fellow in the confessional box. They teach that every sin, the vilest and lowest, the most criminal, by man and woman, must be confessed to the priest. They do not teach it necessary to repent, but to do penance. Notice, this takes the place of repentance. Penance and confession to a wicked priest necessary to salvation ? Is there any intelligent person on the earth who. believes it? The following is what Margaret L. Shepard, who was for three years an inmate of the Arno’s Court Convent, Bristol,'Eng., says: ‘In a confessional the depth of corruption and womanly degradation is reached. There the seeds of hell are planted in the soul. The thoughts of a young girl áre polluted. Her heart is polluted, her mind becomes familiarized with the most revolting sins of impurity. The lessons engraved in the memory, the heart, the thought, the soul, like the sear of a red-hot iron, leaves its scar. In the confessional young unmarried and married women get accustomed to hear and repeat without a scruple things which would cause even a fallen woman to blush.’ These are the words of one who has been through the above and escaped from their murderous hands. I will close with the above. It is a clincher and positive evidence and witness of all I have said. All unite with me in prayer .that the above will open the eyes of many deceived Romanists and come to the blood of Christ.

“ N. L. A. EASTMAN,”

Judge Andrews, in People v. Muller ( 96 N. Y. 408 ), in speaking of section 317, says: “ The words used in the statute are themselves descriptive. They are words in common use and every person of ordinary intelligence understands their meaning and, readily and in most cases accurately, applies them to any subject or thing brought to his attention which involves a judgment as to the quality indicated. It does not require an expert in art or literature to determine whether a picture is obscene or indecent, or whether printed words are offensive to decency and good morals.” Heading the article in question and then applying the common-sense test laid down by Judge Andrews, it is' difficult to see how it could be better defined than as an indecent publication. A few definitions may, however, be given of the word “ indecent” used by the lexicographers. Worcester defines it as something- “ unbecoming; unfit for the eyes or ears.” The Century Dictionary defines it as that which is “ obscene or grossly vulgar; unbecoming, unseemly, violating propriety of language, behavior, etc.” The Imperial Dictionary defines it as “ that which is unbecoming in language, actions or manners.” In the case of United States v. Loftis ( 12 Fed. Rep. 671 ) the opinion states that the term “indecent” signifies “ more than indelicate, and less than immodest; ” that it means “ something unfit for the eye or ear.”

In .reading this statute there may be some danger of falling into the error of construing “ indecent ” as synonymous with

In Reg. v. Hicklin (L. R. [3 Q. B.] 360) the defendant was charged with misdemeanor for selling a book entitled “ The Confessional "Unmasked ; showing the depravity of the Burnish Priesthood, the iniquity of the Confessional and the questions put to females in Confession.” Cookbüen, C. J., wilting the opinion sustaining the charge, says: “ The very reason why this work is put forward to expose the practices of the Boman Catholic Confessional is the tendency of questions, involving practices and propensities of a certain description, to do mischief in the minds of those to whom such questions are addressed, by suggesting thoughts and desires which otherwise would not have occurred to their minds If that be the case between the priest and the person confessing, it manifestly must equally be. so when the whole is put into tho shape of a series of paragraphs, one following upon another, each involving some impure practices, some of them of the most filthy, disgusting and unnatural description it is possible to imagine. * * * We have it, therefore, that the publication itself is a breach of the law.” It would seem to be impossible to distinguish that case from the one at bar.

In Steele v. Brannan (L. R. [7 Com. PL] 231) the question was involved as to the defendant’s guilt for having dealt in printed matter purporting to be extracts from works of Boman Catholic divines and casuists on the subject of the confessional. A conviction of misdemeanor having been had before a police magistrate the case came on review to the Common Pleas. The appellant’s counsel asked: “ What effectual remedy is there in the hands of persons wishing to suppress a system which they conceive to be pernicious, except to expose the tendency of such a system ? ” To this Bovill, C. J.,

In United States v. Bennett (16 Blatchford, 338), Judge Blatohford refers with approval to the language of Judge Clark in charging the jury in the Haywood case as follows : “A book is indecent which is tmbecommg, immodest, unfit to be seen. A book which is obscene, as I have said to you before, or lewd, or lascivious, or indecent, in whole or in part, or in its general scope or tendency, in its plates or pictures, or in its reading matter, falls within the scope of the prohibition ■ of the statute.”

Judge Daniels, in People v. Muller ( 32 Hun, 209 ), says: “ The statute has not particularly described whá,t, within its intent and purpose, should be considered obsene or indecent. But as these words are words of well known significance, it must have been intended by the legislature, in the enactment of this law, to use them in their popular sense and understanding. * * * And as the statute has given this general definition of the character of the acts constituting the offense, it must necessarily liave been designed that the drawing, joicture, photograph or writing should be exhibited to and observed by the jury for them to determine as a matter of fact, in the exercise of their good sense and judgment, whether or not they were obscene and indecent. "x" * * The question in all of these cases must be, what is the impression produced upon the minds by perusing or observing the writing or picture referred to in the indictment, and one person is as competent to determine that as another.”

In United States v. Bebout (28 Fed. Pep. 522) the defendant was indicted under a Federal statute against “ publications of an indecent charactei-.” The trial judge in charging the jury defined thé term “indecent” as something “not decent; unfit to be seen or heard.” He then said: “ There is a test which has often been applied and approved of by the courts in this class of cases to determine whether the publication is obscene or indecent within the meaning of the statute before referred to. It is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of this sort may fall. Under these definitions, whether the matter set out in the indictment was obscene or indecent, is a question of fact for you to determine.”

I am, therefore, unable to concur in the views of the majority. It is true that my brethren have considered it necessary to denounce the publication in question upon almost every conceivable ground of impropriety, except the ground which presents the only question before the court, that it is an indecent publication within the statute. The paper has been characterized by very harsh names that do not, in the

The judgment should be reversed and the demurrer overruled.

Edward T. Baetlett, Yann, Hisoook and Chase, JJ., concur with per curiam opinion, and Cullen, Oh. J.; Haight, J., concurs with O’Brien, J.

Judgment affirmed.