People v. Shapiro

• Decision Date: 21 July 1958
• Citation: 6 A.D.2d 271,177 N.Y.S.2d 670
• Parties: The PEOPLE of the State of New York, respondent, v. Sol SHAPIRO, appellant. The PEOPLE of the State of New York, respondent, v. Irving HERMAN, appellant. The PEOPLE of the State of New York, respondent, v. Alvin L. DRUSS, appellant. The PEOPLE of the State of New York, respondent, v. Julius W. MILLER, appellant.
• Court: New York Supreme Court — Appellate Division

Page 670

177 N.Y.S.2d 670

6 A.D.2d 271

The PEOPLE of the State of New York, respondent, v. Sol SHAPIRO, appellant.

The PEOPLE of the State of New York, respondent, v. Irving HERMAN, appellant.

The PEOPLE of the State of New York, respondent, v. Alvin L. DRUSS, appellant.

The PEOPLE of the State of New York, respondent, v. Julius W. MILLER, appellant.

Supreme Court, Appellate Division, Second Department.

July 21, 1958.

Martin J. Scheiman, New York City, for appellants.

Frank D. O'Connor, Dist. Atty., Long Island City (Howard D. Stave, New York City, of counsel), for respondent.

Before NOLAN, P. J., and WENZEL, BELDOCK, MURPHY and HALLINAN, JJ.

NOLAN, Presiding Justice.

Appellants have been convicted of violating section 1141 of the Penal Law which, insofar as it is pertinent, provides that 'A person who sells, * * * distributes, * * * or has in his possession with intent to sell * * * distribute * * * any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting * * * magazine * * * [i]s guilty of a misdemeanor.'

We may quickly dispose of the contention that the magazine which was distributed is not of the type described in that section. It is sufficient to say that it is fully and completely of the character which the language of the statute condemns. Neither do we find any merit in appellants' assertion that it was error to exclude testimony sought to be elicited from a witness, undoubtedly well qualified as a psychologist, as to his professional opinion with respect to the acceptability of the magazine, in the light of present day criteria of indecency and obscenity. It may be conceded that whether a particular publication is indecent or obscene is a 'question of the times which must be determined as matter of fact' (People v. Winters, 294 N.Y. 545, 551, 63 N.E.2d 98, 101). That question, however, must be determined by those charged with the duty to pass judgment, and we cannot say that the Justices who composed the trial court were not competent to determine of their own knowledge what the moral standards of the community were or that they needed enlightenment from the proffered testimony to aid them in determining whether the magazine was of the type which the statute, in precise terms, seeks to suppress. We have no doubt that situations might arise under the statute in which expert testimony would be useful, and even necessary. The magazine in question, however, is so obviously what the statute condemns--an indecent, obscene and disgusting publication--that there was no issue which required or justified either the statement of facts or of conclusions by witnesses possessed of special skill or learning (cf. Dougherty v. Milliken, 163 N.Y. 527, 533, 57 N.E. 757, 759; People v. Berg, 241 App.Div. 543, 544, 272 N.Y.S. 586, 587).

Appellants also argue that the information does not state an offense in that it fails to allege that they acted knowingly, and that in any event there was no proof that they had any knowledge of the contents of the magazine. Neither argument may be sustained. If it be assumed that scienter is a necessary element of the crime charged, the information and the proof were nevertheless sufficient. It is alleged in the information that the appellants acted 'wilfully'. That allegation sufficiently charges that they acted knowingly and intentionally (People v. Marrin, 205 N.Y. 275, 279, 280, 98 N.E. 474, 475, 43 L.R.A.,N.S., 754; People v. Harrison, 238 N.Y. 348, 351, 352, 144 N.E. 636, 637), and there is ample proof in the record that they did so. Guilty knowledge, like any other fact, may be shown by proof of circumstances from which knowledge may be inferred (People v. Wallach, 60 Hun 584, 15 N.Y.S. 226; People v. Rankin, 92 Misc. 62, 155 N.Y.S. 86; People v. Royall, 156 Misc. 468, 281 N.Y.S. 875).

It appears from appellants' testimony that all of them have had considerable experience in the business of distributing magazines, and we may assume that they had some familiarity with the various types of magazines distributed in the trade and sold on public newsstands and were aware of the law prohibiting the distribution and sale of indecent and obscene publications. The magazine which appellants have been convicted of selling was received, with others, in cartons 9 or 10 days before distribution, and it was necessary to break up the cartons in which they were received, and to rewrap the magazine in packages of 10 to 15, for delivery to the newsstands. A casual inspection of the cover of the magazine was sufficient, if appellants had any itnerest in the matter, to put them on notice of the probable type of the contents. Under such circumstances, appellants may not evade responsibility by closing their eyes to what should have been apparent. The record amply justifies the conclusion that they either knew that the magazine was of the type which they were prohibited from distributing, or took such pains not to know as amounts to the same thing (cf. People v. Finucan, 80 App.Div. 407, 410, 80 N.Y.S. 929, 931; People v. McCue, 87 App.Div. 72, 83 N.Y.S. 1088, affirmed 178 N.E. 579, 70 N.E. 1104).

However this may be, it is our opinion that no proof of guilty knowledge was necessary to establish appellants' guilt of the crime charged against them. Section 1141 of the Penal Law prohibits not only the sale and distribution of indecent publications but also prohibits possession, with intent to sell or distribute. We need not decide what proof would be necessary to convict a defendant accused of possession with intent to sell or distribute in a case in which there had been no attempt to dispose of the prohibited publications. These appellants had made their choice to sell, and had sold the magazine in question, and the statute, insofar as it deals with sale and distribution, makes no mention of intent nor does it require proof of guilty knowledge of the contents of the publication sold or distributed.

Appellants argue, nevertheless, that it must be construed as prohibiting acts only when committed with guilty knowledge, and that, otherwise construed, it would deny due process of law, as guaranteed by the Constitutions of the United States and of the State of New York. U.S.Const. Amend 14; Const. art. 1, § 6. In our opinion no substantial constitutional question is presented. Although it was the general rule at common law that scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it (United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604), we entertain no doubt that the Legislature has power to dispense with the element of scienter in defining a crime, if it is considered necessary to do so in the public interest. The preservation of public morality had always been considered a proper subject for the exercise of the police power (Kingsley International Pictures Corp. v. Regents of University of State of New York, 4 N.Y.2d 349, 359, 175 N.Y.S.2d 39, 46) and in the exercise of that power there are many things prohibited by law, the criminality of which consists solely in the fact that they are prohibited. In such a case, mistake of fact or ignorance constitutes no defense. Cf. People v. Kibler, 106 N.Y. 321, 12 N.E. 795; People v. Werner, 174 N.Y. 132, 66 N.E. 667; People v. Bowen, 182 N.Y. 1, 74 N.E. 489; People v. Persce, 204 N.Y. 397, 97 N.E. 877. The accused, if he does not will the violation, is usually in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities (Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288), and there is no absence of due process because of the punishment of a person for an act in violation of law although he may be ignorant of the facts which made it so (United States v. Balint, 258 U.S. 250, 252, 253, 254, 42 S.Ct. 301, 66 L.Ed. 604, supra; Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 58, 67, 68, 30 S.Ct. 663, 54 L.Ed. 930). The question presented is one of legislative intent, to be determined on consideration of the statutory definition of the crime (Penal Law, §§ 20, 22; People v. Ingber, 248 N.Y. 302, 307, 162 N.E. 87, 89; People v. Brengard, 265 N.Y. 100, 191 N.E. 850, 93 A.L.R. 1465), and the law which preceded it, and which it replaced (People v. Fanshawe, 137 N.Y. 68, 74, 32 N.E. 1102, 1103). It is our opinion that the language employed in, and the history of, the statute invoked and the statutes from which it is derived clearly indicate the legislative intent to dispense with scienter as an element of the crime defined, and to impose the risk of violation on those who fail to inspect that which they sell or distribute to others for public sale.

The statute with which we are here concerned is derived from section 317 of the Penal Code. The latter statute, however, was not the first proposed to, or enacted by, the Legislature, dealing with the subject under consideration.

By chapter 266 of the Laws of 1857, three commissioners (David Dudley Field, William Curtis Noyes and Alexander W. Bradford) were appointed to codify the laws of the State and were directed to prepare, among other things, a Penal Code which was to define all the crimes for which persons could be punished. A draft of the proposed Penal Code was submitted by the commissioners in April, 1864. In their 'Preliminary Note' thereto, the commissioners stated that one of their 'leading objects' had been 'To bring within the compass of a single volume the whole body of the law of crimes and punishments in force within this state.' It was their opinion that 'The existing statute law of crimes, though comprehensive, does not abrogate rules of the common law making criminal many acts which are untouched by statute; nor does it, in respect to crimes for which...