People v. Eastman

• Decision Date: 21 May 1907
• Citation: 188 N.Y. 478,81 N.E. 459
• Parties: PEOPLE v. EASTMAN.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 478

81 N.E. 459

PEOPLE

v.EASTMAN.

Court of Appeals of New York.

May 21, 1907.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Newton L. A. Eastman was indicted for selling and exposing for sale certain printed matter of an indecent character. From a judgment of the Appellate Division (101 N. Y. Supp. 1137,116 App. Div. 922) affirming a judgment sustaining a demurrer to the indictment, the people appeal. Affirmed.

O'Brien and Haight, JJ., dissenting.

Howard H. Widener, for the People.

Albert H. Stearns, for respondent.

PER CURIAM.

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 7, headed as follows: ‘Indecent exposures, obscene exhibitions, books and prints, and bawdy and other disorderly houses.’ Section 317 opens as follows: ‘Sec. 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 used the word ‘indecent’ that it relates to obscene prints or publications. It is not an attempt to regulate manners, but it is a declaration of the penalties to be imposed upon the various phases of the crime of obscenity. The word ‘indecent’ is used in a limited sense in this connection and falls within the maxim of noscitur a sociis.

The judgment and order appealed from should be affirmed.

CULLEN, C. J.

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 attack 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 articles 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 this court, not because I deem it lewd, but because I feel that the reports of this court should not be made the means of perpetuating a scurrilous and wanton slander on any class of the community. This is an example of the extent to which sectarian religious animosities may lead a weak and disordered mind, for it is mere charity to consider such to be the character of the writer of the production. Since, however, the article is to appear, I may challenge its comparison with many that have been published attacking the Mormon church. Surely publications as to that church have gone far beyond the article now before us. It is no answer to way that the Mormons, while they practiced polygamy, were justly subject to such strictures. The truth or falsity of the writing has no bearing on the guilt or innocence of the defendant under this section of the Code. If the charges contained in this article had been made, not against a class but against a single individual, and that individual a layman, not a clergyman, it would, doubtless, if false, have been a gross libel. But it would not be contended that, if true, it was indecent and should subject the party writing it to the penalties prescribed by the Code.

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, 97 Am. Dec. 605;State v. Brady, 44 Kan. 435, 24 Pac. 948,9 L. R. A. 606, 21 Am. St. Rep. 296), 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 people of the state been to secure freedom of speech, subject only to punishment when a jury has found that that freedom has been abused, that by the various Constitutions of this state, ever since that of 1822, it has been expressly enacted that in a prosecution for libel the truth may be given in evidence and the jury shall have the right to determine the law as well as the fact. This applies to no other criminal prosecution.

O'BRIEN, J. (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 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. Therefor we must allow the writing to speak for itself; and here it is:

‘The Open Door to Hell

‘Is the confessional box. 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. No time to trifle. The Anaconda is drawing itself over many a threshold and stinging thousands to death. Hark! 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 Christ to confess your sins. Not in a concealed and secluded place alone. No 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 delicate 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? Right 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 witnesses. May it not well be...