People v. Douglas

• Decision Date: 17 January 1961
• Parties: PEOPLE of the State of New York, Appellant, v. William S. DOUGLAS, Augustus J. LaComb, Clarence F. LaComb and Harold J. LaComb, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 734

209 N.Y.S.2d 734

12 A.D.2d 194

PEOPLE of the State of New York, Appellant, v. William S. DOUGLAS, Augustus J. LaComb, Clarence F. LaComb and Harold J. LaComb, Defendants-Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 17, 1961.

Charles E. Bowers, Dist. Atty. of St. Lawrence County, Canton, for appellant.

Louis J. Lefkowitz, Atty. Gen., Paxton Blair, Sol. Gen., Ruth Kessler Toch, Asst. Sol. Gen., Albany, of counsel, for the People, under Section 71 of Executive Law.

Ross E. Brown, Morristown, for defendants-respondents.

Brock, Fleishman & Rykoff, Stanley Fleishman, Hollywood, Cal., for All-States News Co., Inc., amicus curiae.

Edward S. Silver, William Sonenshine and Aaron E. Koota, Brooklyn, New York State Dist. Attys.' Assn., amicus curiae.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

REYNOLDS, Justice.

The defendants herein were indicted for selling obscene magazines, a misdemeanor in violation of section 1141 of the Penal Law ('Obscene Prints * * *') and moved for the dismissal of said indictment on all the grounds of demurrer set forth in section 323 of the Code of Criminal Procedure except those in subd. 5. The Special County Judge dismissed the indictment on the ground that subsection 1 of Penal Law, § 1141 is unconstitutional, being contrary to the letter and spirit of Amendment 14 of the U. S. Constitution and Article I, section 8 of the Constitution of the State of New York. The People appeal.

The order dismissing the indictment must be affirmed not because of unconstitutionality of the statute but because of insufficiency of the indictment.

The constitutionality of subd. 1 has been upheld in People v. Doubleday & Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398. A majority of the Supreme Court had previously found that the words 'obscene', 'lewd', 'lascivious', 'filthy', 'indecent' and 'disgusting' were not unconstitutionally vague but rather were well understood through long use in the criminal law. Winters v. People of State of New York, 333 U.S. 507, 518, 68 S.Ct. 665, 92 L.Ed. 840. In fact subd. 1 of Penal Law § 1141 was used as an illustration of a properly worded statute. Therefore until the Smith v. California decision (361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205) subsection 1 of section 1141 was a constitutionally sound penal statute dealing with obscenity.

In Smith v. California, supra, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, the Supreme Court struck down a California penal statute (West's Ann.Pen.Code, § 311) dealing with obscenity which dispensed with the element of scienter. In Smith the Court noted that obscene speech and writings are not protected by constitutional guarantees of freedom of speech and the press (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498), but the majority pointed out that penal statutes dealing with obscene material must not impede the distribution of nonobscene material. Consequently the court felt that a penal statute not requiring scienter was unconstitutional as it could result in a book seller or distributor only selling that material which he had had a chance to inspect, which would curtail free speech and press through distribution controls. The important question raised by this appeal is whether subsection 1 of section 1141 requires scienter to be proved as an element of the crime or in other words is scienter an element of the crime? If scienter is not an element then the statute is unconstitutional under the authority of the Smith case.

The pertinent part of the section reads as follows;

'A person who sells * * * distributes * * * any obscene, lewd, lascivious, filthy, indecent sadistic, masochistic or disgusting * * * magazine * * * [i]s guilty of a misdemeanor.' Subsection 1, section 1141 of the Penal Law.

In People v. Shapiro, 6 A.D.2d 271, 177 N.Y.S.2d 670, 675, the Second Department found that scienter was not an element of the crime. This conclusion was based upon a lengthy discussion of the legislative history of the section where it was noted that the words 'willfully and lewdly' had been omitted after their recommendation. However in the more recent People v. Richmond County News, Inc., 11 A.D.2d 799, 205 N.Y.S.2d 94, 96, the Second Department stated that 'proof of scienter is indispensable in order to support a conviction under the statute.' The Shapiro case was not mentioned. In support of its statement that proof of knowledge was necessary to sustain a conviction under the statute the court cited the Smith case and People v. Engel, 7 N.Y.2d 1002, 200 N.Y.S.2d 48. In Engel a candy store operator had been convicted of selling an obscene magazine. The proof was that there were 100 differently titled magazines on display and the proprietor testified that he never examined the contents of the books and magazines. The Court of Appeal reversed the judgment and dismissed the information upon the authority of Smith v. California (361 U.S. 147, 80 S.Ct. 215, supra). No opinion was written. Essentially it would seem that the court reversed on the failure of proof. Perhaps it could be implied from Engle that the statute requires scienter but this does not necessarily follows.

The New York State District Attorneys' Association in its brief amicus curiae herein contends that section 1141 of the Penal Law as affected by the Smith case may be held constitutional by the doctrine of constitutional separability; that a statute which includes scienter as an element of the offense is constitutional under the Roth case; that a statute which excludes scienter is unconstitutional under the Smith case, at least where the statute has been so construed by the State as to be designed exclusively to prosecute non-scienter cases; that in the latter event it is not even permissible to apply the doctrine of constitutional separability since the statute is patently incapable of being so separated; that the New York statute, however, is susceptible of either of two interpretations (1) that it is designed only for cases in which scienter is proven; (2) that it is designed for cases in which scienter may or may not be proven. Since the Smith case precludes a construction which would authorize prosecution of a non-scienter case, the statute manifestly must be either construed to be constitutional to the extent that scienter is necessary element, or in the alternative, it must be stricken down in its entirety; that under Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270, 115 N.E. 711, however, our courts are free to adopt, if necessary, a revised construction which would conform to the constitutional requirements as defined by the United States Supreme Court.

Since our statute, unlike the Los Angeles ordinance (Smith, supra), is manifestly capable of a construction which would include scienter as an element of the offense, the doctrine of separability may quite properly be applied here toward the end that the statute may stand as constitutional.

The Attorney-General urges that it is within the province of the courts of this State to construe Penal Law, § 1141 as requiring scienter and it is the duty of our courts to so construe it in order to avoid unconstitutionality. They further point out that the construction of a State statute by the State courts is accepted by the Supreme Court of the United States as controlling and cite Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. The statute before the court in that case was the Feinberg Law (Education Law, § 3022; L.1949, ch. 360) which declares membership in an organization listed by the Board of Regents as advocating the overthrow of the government by force and violence 'prima facie evidence of disqualification' for positions in the public schools of...