People v. Winters

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 1 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

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, 96 N. Y. 408 ; Swearingen v. United States, 161 U. S. 446 .) Such indeed is the way this court has' read subdivision 1 of section 1141 of the Penal Law (People v. Eastman, 188 N. Y. 478 ). But to limit the above words of subdivision 2 of section 1141 to that restricted meaning would be to reduce that subdivision to an unnecessary partial reduplication of subdivision 1. Since our respect for the Legislature is enough to keep us away from that interpretation, we move along to the question of the validity of the broader scope of subdivision 2. From this point on, that subdivision will be called the statute.

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, 249 U. S. 618 ; Matter of Foy Productions, Ltd., v. Graves, 278 N. Y. 498 .)

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, 254 N. Y. 373 ; People v. Wendling, 258 N. Y. 451 ; People v. Streep, 264 N. Y. 666 ; People v. Berg, 269 N. Y. 514 ; People v. Fellerman, 269 N. Y. 629 ; People v. Brewer, 272

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, 229 U. S. 373 , 377.) A recent illustration comes readily to hand: An occupier of land who by his use of it does an unreasonable injury to his neighbor’s property can be held to answer therefor, though he may have been guilty of no more than an error of judgment. (Dixon v. New York Trap Rock Corp. 293 N. Y. 509 .) So when reasonable men may fairly classify a publication as necessarily or naturally indecent or obscene, a mistaken view by the publisher as to its character or tendency is immaterial.

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

The judgment should be affirmed.

(dissenting). 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, 283 U. S. 359 .) Though statutes directed against “ obscenity ” and “ indecency ” are not too vague when limited by judicial definition, they may be too vague when not so limited. (See McJunkins v. State, 10 Ind. 140 ; Jennings v. State, 16 Ind. 335 .) It is the function of the Legislature to define the kind of conduct which is harmful from the standpoint of public order or morality and should be prohibited. Then the question whether the conduct of a defendant falls within that definition may be one of fact. The morality of the community does not, however, become the standard of permissible conduct until the Legislature has embodied its conception of that morality in a regulatory statute.

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 294 N. Y. 979 .]