People v. Mishkin

• Citation: 26 Misc.2d 152,207 N.Y.S.2d 390
• Parties: PEOPLE of the State of New York v. Edward MISHKIN, Defendant.
• Decision Date: 16 November 1960
• Court: New York Court of Special Sessions

Page 390

207 N.Y.S.2d 390

26 Misc.2d 152

PEOPLE of the State of New York v. Edward MISHKIN, Defendant.

Court of Special Sessions of the City of New York, New York

County, Part III.

Nov. 16, 1960.

Frank S. Hogan, Dist. Atty., New York County, New York City, Melvin Stein, Asst. Dist. Atty., New York City, for the People.

Michael Kern, New York City, for defendant.

Before BRESLIN, P. J., and GALLOWAY and GASSMAN, JJ.

BENJAMIN GASSMAN, Justice.

On December 29, 1959, police officers confiscated a number of books, alleged to be obscene, from a book store at 254 West 42nd Street, New York, known as Publishers' Outlet. Those books were all identified and were later admitted in evidence. On January 12, 1960, police officers, armed with a search warrant, raided a basement in premises 37 West 20th Street, New York, and confiscated a number of books, alleged to be obscene, which books were identified and later admitted in evidence. According to the testimony of one Norman Levenberg, who had a printing shop at 37 West 20th Street, those books were the property of the defendant. He testified that he printed those books at the request of the defendant; that the defendant instructed him to deliver some of those books to Publishers' Outlet, some to another store designated by the defendant, and the balance stored in Room 908 of the said building. He testified further that the defendant gave him each month the money to cover the rental of that room; that in November, 1959, defendant told him that Room 908 was under police surveillance and instructed him to move the books from that room, and that he thereupon made an arrangement with the superintendent of 37 West 20th Street for permission to use the basement for the storage of those books. He stated further that he removed the books from 908 to the basement, where they were found and seized by the police. According to Levenberg, he paid about $600 to the superintendent for the use of that basement and that the defendant gave him about $200 of that amount.

On February 10, 1960, the police also confiscated three books, alleged to be obscene, from the Main Stem Book Store, at 1607 Broadway, New York. It is charged that the defendant owned or had control of both The Publishers' Outlet and the Main Stem Book Store.

As a result of the testimony presented to the Grand Jury, and at the direction of the Grand Jury, the District Attorney filed an information, containing 198 counts, charging the defendant with the following:

Counts 1 to 62 inclusive, with possession with intent to sell, of a number of books described in the said counts, which are alleged to be obscene, lewd, lascivious, filthy, indecedent, sadistic, masochistic and disgusting. At the outset of the trial, the People moved to dismiss Counts 33, 34, 35, 36, 54, 55, 56 and 62, and they were dismissed.

Counts 63 to 110 inclusive, with publishing, manufacturing and preparing a number of books described in those counts, which are alleged to be within the proscription of subdivision 1 of Section 1141 of the Penal Law. At the outset of the trial, the People moved to dismiss Counts 94 and 105, and they were dismissed.

Counts 111 to 159 inclusive, with unlawfully hiring, employing, using and permitting other persons to design, print, utter, publish, manufacture and prepare a quantity of books described in those Counts, which are alleged to be within the proscription of subdivision 1 of Section 1141 of the Penal Law. At the outset of the trial, the People moved to dismiss Counts 143 and 154, and they were dismissed.

Counts 160 to 198 inclusive, with failing to imprint the true name and address of the publisher or printer on the books described in those Counts, in violation of Sections 330 and 331 of the General Business Law. At the outset of the trial, the People moved to dismiss Counts 191 and 195, and they were dismissed.

The People called twenty-two witnesses and the defendant called two. We also have before us 94 exhibits offered by the People and one exhibit offered by the defendant. The 94 People's exhibits included 54 books and 5 sets of cartoons. We read all of the books and cartoons.

Subdivision 1 of Section 1141 of the Penal Law provides in substance that 'a person who sells * * * or has in his possession with intent to sell * * * obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book * * * is guilty of a misdemeanor'. That section uses the descriptive adjectives quoted above in addition to the adjective 'obscene', and it was held that all of those adjectives are synonymous with 'obscene'. People v. Brooklyn News Co., 12 Misc.2d 768, 771, 174 N.Y.S.2d 813, 817.

The word 'obscene' is derived from the Latin 'obscenus', meaning 'filthy, repulsive'. Webster's Universal Dictionary defines 'obscene' as 'offensive to chastity and delicacy, impure, expressing or presenting to the mind or view something which delicacy, purity and decency forbid to be exposed.'

While each book must be viewed in its entirety, it does not mean that every page must be obscene for a book to be so judged. A book is obscene if it contains prohibited matter in such quantity or of such a nature as to flavor the whole and impart to the whole any of the qualities mentioned in the statute. The problem is to be solved, not by counting the pages, but rather by considering the impression likely to be created by them.

In Roth v. United States, 354 U.S. 476, at page 484, 77 S.Ct. 1304, at page 1309, 1 L.Ed.2d 1498, the court said: 'All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance'. The court further held (354 U.S. at page 489, 77 S.Ct. at page 1309) that 'obscenity is not within the area of constitutionally protected speech or press'. The test of obscenity, as laid down in the Roth case (354 U.S. at page 489, 77 S.Ct. at page 1311), is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

Funk and Wagnalls New Standard Dictionary defines 'prurient' as 'inclined to lecherous thoughts and desires'. While in recent times, some judicial opinions have been construed as holding that in these changing times former notions of propriety have, in many respects, been discarded, it is nevertheless true that 'there does emerge, somewhat hazily, the rule that an obscene book is one that 'tends to corrupt the morals of youth,' or 'to lower the standards of right and wrong specifically as to the sexual relation.' To be deemed obscene it must show 'sexual impurity' and result in the 'exciting of lustful and lecherous thoughts and desires' or tend 'to stir sex impulses or to lead to sexually impure thoughts'.' People v. Berg, 241 App.Div. 543, 544, 272 N.Y.S. 586, 588, affirmed 269 N.Y. 514, 199 N.E. 513; People v. Larsen, Sp.Sess., 5 N.Y.S.2d 55, 56; People v. Pesky, 230 App.Div. 200, 243 N.Y.S. 193, affirmed 254 N.Y. 373, 173 N.E. 227.

While it is true that, in determining what is obscene, 'the law will not hold the crowd to the morality of saints and seers' (Cardozo, Paradoxes of Legal Science, 1928 ed. p. 37), yet if any book is 'calculated to appeal to the baser instincts of mankind' it must be held to be violative of the statute. People v. Fellerman, 243 App.Div. 64, 65, 276 N.Y.S. 198, 199, affirmed 269 N.Y. 629, 200 N.E. 30.

In writing the books before us, the respective authors made 'no attempt to point to any lesson that might be of value to any one that would read [them]. It was just a clear attempt to portray filthy ideas'. People v. Pesky, 230 App.Div. 200, 202, 243 N.Y.S. 193, 196.

We accordingly hold that Exhibits 1 to 32 inclusive, 43 to 64 inclusive, and 68 to 72 inclusive, come within the proscription of the statute. They lack literary merit. They teach no lesson and point no moral. The authors of those books have not become distinguished by their place in the literary world nor by the quality of their style of writing. They wrote those books on order from the defendant. One of them, in signing a contract for the sale of two of his manuscripts to the defendant (People's Exhibit 74) stipulated...