234 N.Y. 1, Halsey v. New York Soc. For Suppression of Vice

Citation:234 N.Y. 1
Case Date:July 12, 1922
Court:New York Court of Appeals

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234 N.Y. 1

RAYMOND D. HALSEY, Respondent,



New York Court of Appeal

July 12, 1922

Argued March 13, 1922.

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William C. Beecher for appellant. The 'Memoirs of Mademoiselle de Maupin' is a lewd, lascivious, indecent and obscene publication. If so, then there was probable cause for plaintiff's arrest and prosecution. (People v. Muller, 32 Hun, 209; People v. Doris, 14 A.D. 117.) There was ample probable cause for plaintiff's arrest. (Schultz v. Gen. Chem. Co., 190 N.Y. 276.) Even if the book were considered to be a standard literary work that would not excuse its publication, if in fact it was lewd, lascivious and indecent by its suggestions and descriptions. (Regina v. Hecklin, 3 Eng. L. R. Q. B. 43; U.S. v. Bennett, 16 Blatchf. 338.)

Edwin F. Valentine and Sherwood O. Chichester for respondent. The question of probable cause was properly submitted to the jury and their finding of a lack of probable cause is amply supported by the evidence. (Burns v. Wilkinson, 228 N.Y. 113; Grew v. Mountain Home Tel. Co., 192 A.D. 863; Cassidy v. Uhlmann, 170 N.Y. 505.) The book, 'Mademoiselle de Maupin, ' is not an indecent and obscene publication, but is a standard literary work and its sale did not violate section 1141 of the Penal Law. (Stephen's Dig. of Crim. Law, 105; 3 Whart. Crim. Law [11th ed.], 2125; Matter of Worthington, 30 N.Y.S. 361; St. Hubert Guild v. Quinn, 64 Misc. 337; People v. Eastman, 188 N.Y. 478; People v. Brainerd, 192 A.D. 816.)


On November 17, 1917, in the city of New York, the plaintiff sold to an agent of the defendant, one Sumner, an English translation of 'Mademoiselle de Maupin.' Mr. Sumner submitted the book to City

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Magistrate House who, however, took no action. He then on November 22d presented a marked copy to Magistrate Simms with a letter calling attention to certain pages which he thought deserved examination. On the 28th he also presented a verified complaint to this magistrate charging that the book was obscene and indecent, referring not only to the marked pages but to the entire work. Thereupon an order was issued stating that it appeared 'from the within depositions and statements that the crime therein mentioned has been committed' and holding the plaintiff to answer. The plaintiff was arrested at the direction of Sumner and arraigned. He waived examination, was held for the action of the Court of Special Sessions, tried and acquitted. The record of that trial is not before us, but it was conceded that the copy of 'Mademoiselle de Maupin' had been sold by the plaintiff and the acquittal was for the reason, apparently, that the book was not obscene or indecent. This action to recover damages for malicious prosecution was then begun. At the close of the evidence the case was submitted to the jury which found a verdict for the plaintiff. The Appellate Division has affirmed the judgment entered thereon.

The entire book was offered in evidence. We are asked to say from its bare perusal that probable cause existed for the belief on the part of Sumner that the plaintiff was guilty by its sale of a violation of section 1141 of the Penal Law.

In an action for malicious prosecution one of the elements of the plaintiff's case is lack of probable cause. Whether or not this fact has been established may be for the jury to determine. Or it may become a question of law for the court. It is for the jury either when the circumstances upon which the answer depends are disputed or where conflicting inferences may fairly be drawn from them. (Burns v. Wilkinson, 228 N.Y. 113; Galley v. Brennan, 216 N.Y. 118.)

Theophile Gautier is conceded to be among the greatest

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French writers of the nineteenth century. When some of his earlier works were submitted to Sainte-Beuve, that distinguished critic was astonished by the variety and richness of his expression. Henry James refers to him as a man of genius (North American Review, April, 1873). Arthur Symons (Studies in Prose and Verse), George Saintsbury (A Short History of French Literature), James Breck Perkins (Atlantic Monthly, March, 1887) all speak of him with admiration. They tell of his command of style, his poetical imagery, his artistic conceptions, his indescribable charm, his high and probably permanent place in French literature. They say that in many respects he resembles Thackeray.

This was the man who in 1836 published 'Mademoiselle de Maupin.' It is a book of over four hundred pages. The moment it was issued it excited the criticism of many, but not all of the great Frenchmen of the day. It has since become a part of French literature. No review of French writers of the last one hundred years fails to comment upon it. With the author's felicitous style, it contains passages of purity and beauty. It seems to be largely a protest against what the author, we believe mistakenly, regards as the prudery of newspaper criticism. It contains many paragraphs, however, which taken by themselves are undoubtedly vulgar and indecent.

No work may be judged from a selection of such paragraphs alone. Printed by themselves they might, as a matter of law, come within the prohibition of the statute. So might a similar selection from Aristophanes or Chaucer or Boccaccio or even from the Bible. The book, however, must be considered broadly as a whole. So considered, critical opinion is divided. Some critics, while admitting that the novel has been much admired, call it both 'pornographic and dull.' (The Nation, Nov. 2, 1893.) Mr. Perkins writes that 'there is much in Mademoiselle de Maupin that is unpleasant, and is saved only by beauty of expression from being vulgar.

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Though Gautier's style reached in this novel its full perfection, it is far from his best work and it is unfortunate that it is probably the one best known.' An article...

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