96 N.Y. 408, People v. Muller

Citation96 N.Y. 408
Party NameTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AUGUST MULLER, Appellant.
Case DateOctober 07, 1884
CourtNew York Court of Appeals

Page 408

96 N.Y. 408

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

AUGUST MULLER, Appellant.

New York Court of Appeal

October 7, 1884

Argued Jun. 9, 1884.

Page 409

COUNSEL

John D. Townsend for appellant. The court erred in refusing to allow defendant to prove by experts that there exists a distinguishing line as understood by artists between pure art and obscene and indecent art. ( R. & S. R. R. Co. v. Budlong, 10 How. Pr. 290; Lamoure v. Caryl, 4 Denio, 370; Greenfield v. People, etc., 85 N.Y. 83; Platner v. Platner, 78 Id . 90.)

John Vincent for respondent. Whether the statute was violated was a question of fact to be determined by the jury upon inspection of the pictures, and an examination of them will demonstrate that fact. ( Reg. v. Hicklin, L. R., 3 Q. B. 360.)

ANDREWS, J.

The first count in the indictment charges the defendant with selling indecent and obscene photographs, representing nude females in lewd, obscene, indecent, scandalous and lascivious attitudes and postures, and the second count charges him with having in his possession divers, lewd, scandalous, obscene and indecent photographs of the same character, with intent to sell the same. Section 317 of the Penal Code declares among other things that a person who sells, lends, gives away, or offers to give away, or shows, or has in his possession with intent to sell, or give away, or to show, or advertises, or otherwise offers for loan, gift, sale, or distribution, an obscene or indecent book, writing, paper, picture, drawing or photograph, is guilty of a misdemeanor. The evidence on the trial in support of the indictment related to nine photographs produced before the jury, which were proved to have been sold by the defendant in the ordinary course of his employment as a clerk in a store for the sale of books, pictures and photographs, in the city of New York. The record contains no special description of the photographs, except that it appears

Page 410

that they represented nude females, and were photographic copies of paintings which had been exhibited in the Salon in Paris, and one of them at the centennial exhibition in Philadelphia, and that among them were pictures designated "La Asphyxie," "After the Bath," and "La Baigneuse. "

The jury by their verdict of guilty necessarily found that the photographs were obscene and indecent. The exhibits were produced on the argument of the appeal at the General Term, and the court in its opinion expressed its concurrence with the finding of the jury, saying that they might very well have found that the...

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67 practice notes
  • 32 Misc.3d 1208(A), 2011-51208, HSBC Bank USA, N.A. v. Taher
    • United States
    • July 1, 2011
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 37 Misc.3d 1206(A), 2012-51902, IndyMac Federal Bank, FSB v. Meisels
    • United States
    • October 4, 2012
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 39 Misc.3d 1221(A), 2013-50686, The Bank of New York v. Cepeda
    • United States
    • May 2, 2013
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 126 S.W. 495 (Mo. 1910), City of St. Louis v. King
    • United States
    • Missouri Supreme Court of Missouri
    • March 15, 1910
    ...minds of those into whose hands the publication might fall, whose minds are open to such immoral influences." In People v. Muller, 96 N.Y. 408, the Court of Appeals said: "The test of an obscene book was stated in Regina v. Hicklin, L. R. 3 Q. B. 369, to be whether the tendency of......
  • Request a trial to view additional results
67 cases
  • 32 Misc.3d 1208(A), 2011-51208, HSBC Bank USA, N.A. v. Taher
    • United States
    • July 1, 2011
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 37 Misc.3d 1206(A), 2012-51902, IndyMac Federal Bank, FSB v. Meisels
    • United States
    • October 4, 2012
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 39 Misc.3d 1221(A), 2013-50686, The Bank of New York v. Cepeda
    • United States
    • May 2, 2013
    ...principles of morality." ( Elco Shoe Mfrs. v. Sisk, 260 N.Y. 100, 103 [1932] ). ( See Sokoloff v. Harriman Estates Development Corp., 96 N.Y. 409 [2001] ); Wechsler v. Bowman, 285 N.Y. 284 [1941]; Lamdin v. Broadway Surface Advertising Corp., 272 N.Y. 133 [1936] ). An agent " is p......
  • 126 S.W. 495 (Mo. 1910), City of St. Louis v. King
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 15, 1910
    ...minds of those into whose hands the publication might fall, whose minds are open to such immoral influences." In People v. Muller, 96 N.Y. 408, the Court of Appeals said: "The test of an obscene book was stated in Regina v. Hicklin, L. R. 3 Q. B. 369, to be whether the tendency of......
  • Request a trial to view additional results