Commonwealth v. Gordon
| Decision Date | 18 March 1949 |
| Docket Number | 858 et seq |
| Parties | Commonwealth v. Gordon et al |
| Court | Pennsylvania Commonwealth Court |
June sessions, 1948
John H. Maurer, district attorney, Franklin E Barr and John F. Kane, assistant district attorneys, for Commonwealth.
Thomas D. McBride and M. Phillip Freed, for defendants.
Trial without jury.
This is a trial without jury, all defendants having signed waivers on all indictments.
The evidence consists of nine books and an oral stipulation at bar that defendants are booksellers and that they possessed the books with the intent to sell them on the dates and at the times and places set forth in the indictments. This constituted in full the Commonwealth's evidence, to which defendants have demurred.
I have read the books with thoughtful care and find that they are not obscene, as alleged. The demurrers are therefore sustained.
The indictments are drawn under section 524 of The Penal Code of June 24, 1939, P. L. 872, 18 PS § 4524, which reads as follows:
" Whoever sells, lends, distributes, exhibits, gives away, or shows or offers to sell, lend, distribute, exhibit, or give away or show, or has in his possession with intent to sell, lend, distribute or give away or to show, or knowingly advertises in any manner, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, storypaper, paper, writing, drawing, photograph, figure or image, or any written or printed matter of an indecent character, or any article or instrument of indecent or immoral use or purporting to be for indecent or immoral use or purpose, or whoever designs, copies, draws, photographs, prints, utters, publishes, or in any manner manufactures or prepares any such book, picture, drawing, magazine, pamphlet, newspaper, storypaper, paper, writing, figure, image, matter, article or thing, or whoever writes, prints, publishes or utters, or causes to be printed, published or uttered, any advertisement or notice of any kind giving information, directly or indirectly, stating or purporting to do so, where, how, of whom, or by what means any, or what purports to be, any obscene, lewd, lascivious, filthy, disgusting or indecent book, picture, writing, paper, figure, image, matter, article or thing named in this section can be purchased, obtained or had, or whoever prints, utters, publishes, sells, lends, gives away, or shows, or has in his possession with intent to sell, lend, give away, or show, or otherwise offers for sale, loan or gift, or distribution, any pamphlet, magazine, newspaper or other printed paper devoted to the publication and principally made up of criminal news, police reports or accounts of criminal deeds, or pictures of stories of deeds of bloodshed, lust or crime, or whoever hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section, is guilty of a misdemeanor, and upon conviction, shall be sentenced to imprisonment not exceeding one (1) year, or to pay a fine not exceeding five hundred dollars ($ 500), or both."
The particular and only charge in the indictments is that defendants possessed some or all of the books with the intent to sell them.
Section 524, quoted above, is based upon the earlier Acts of May 6, 1887, P. L. 84, and May 12, 1897, P. L. 63, 18 PS § § 780, 781 and 782, which are similar in scope and not essentially different in wording. The earliest and only other act is the Criminal Code of March 31, 1860, P. L. 382, sec. 40, 18 PS § 779, which made it an offense to " publish or sell any filthy and obscene libel" .
It should be noted at once that the wording of section 524 requires consideration of the indicted material as a whole; it does not proscribe articles or publications that merely contain obscene matter. This is now true in all jurisdictions that have dealt with the subject: the Federal courts, Swearingen v. United States, 161 U.S. 446 (1896); United States v. Ulysses, 72 F.2d 705 (1934); Walker v. Popenoe, 149 F.2d 511 (1945); Massachusetts, Commonwealth v. Isenstadt, 318 Mass. 543 (1945); New York, Halsey v. New York Society, 234 N.Y. 1, 136 N.E. 219 (1922); England, Regina v. Hicklin, L. R. 3 Q. B. 360 (1868).
It is also the rule in Pennsylvania. In Commonwealth v. New, 142 Pa.Super 358 (1940), the court said:
" We have no fault to find with the statement that in determining whether a work is obscene, it must be construed as a whole and that regard shall be had for its place in the arts ." (Italics supplied.) Resume of the Opinion
Section 524, for all its verbiage, is very bare. The full weight of the legislative prohibition dangles from the word " obscene" and its synonyms. Nowhere are these words defined; nowhere is the danger to be expected of them stated; nowhere is a standard of judgment set forth. I assume that " obscenity" is expected to have a familiar and inherent meaning, both as to what it is and as to what it does.
It is my purpose to show that it has no such inherent meaning; that different meanings given to it at different times are not constant, either historically or legally; and that it is not constitutionally indictable unless it takes the form of sexual impurity, i.e., " dirt for dirt's sake" and can be traced to actual criminal behavior, either actual or demonstrably imminent.
1, 2 and 3. The Studs Lonigan trilogy (" Young Lonigan", " The Young Manhood of Studs Lonigan", " Judgment Day" ), by James T. Farrell; Vanguard Press, 1932-1935.
This is the story of the moral and physical disintegration of a young man living in Chicago between the years 1916 and 1932. Nothing that he attempted ever quite came off, and his failures became more and more incisive. He left school to hang around the streets with others of his kind; he was too young to enlist for war service; he loved Lucy since they were in school together, but avoided her for four years and finally alienated her by making drunken advances to her; he worked for his father as a painter, but, on a casual tip, invested his savings in a dubious stock, which failed; he fell half-heartedly in love with Catherine, and they were engaged to be married, but she became pregnant by him before the ceremony; looking for a job on a stormy day a few weeks before the wedding, he caught cold and died of pneumonia and a weakened heart.
The background of the semi-slum district in which Lonigan was born and lived was the outward counterpart of his own nature, and both together were too much for such decency of soul as he had. His drift downhill was relentless and inevitable. On the theory that no literature is vital that cannot be vulgarized, this trilogy may rank as an epic, for our criminal courts and prisons and many of our streets are peopled by Studs Lonigans. The characters in these books act and speak the kind of life that bred them, and Mr. Farrell has brought to the surface the groundswell of thought and inclination that move more people than, if they were honest, would admit to them.
It is not a pleasant story, nor are the characters gentle and refined. There is rape and dissipation and lust in these books, expressed in matching language, but they do not strike me as being out of proportion. The books as a whole create a sustained arc of a man's life and era, and the obvious effort of the author is to be faithful to the scene he depicts.
No one would want to be Studs Lonigan.
4. " A World I Never Made", by James T. Farrell; The Vanguard Press, New York, 1936.
This book could well be the beginning of another series, for it takes a minor character from the Lonigan books, Danny O'Neill, and shows him as a child. The milieu is the same -- Chicago in 1911 -- but there is a discernible effort to show Danny's struggle uphill against the same factors that pushed Lonigan down.
This is the one book of the nine that does not end tragically; it merely stops in midstream, but the people who surround Danny do and say the same things that appear in the Lonigan series. Unlike the latter, this book is plastered with the short Saxon words of common vulgarity; they are consistent with the characters who use them and with the quality of the lives and actions that are the subject of the author's scrutiny.
I am not of a mind, nor do I have the authority, to require an author to write about one kind of people and not about another, nor do I object to his effort to paint a complete picture of those whom he has chosen. Certainly I will not say that it is not a good thing to look deeply into life and people, regardless of the shadows that are to be found there.
5. " Sanctuary", by William Faulkner; Random House, 1931.
This is a powerful and dreadful story about a gay but virginal girl of 17 who accidentally falls into the hands of a sadistic man called Popeye, who is sexually impotent. He kills a half-witted boy who is informally guarding the girl, and ravishes her with a corncob. He then keeps her imprisoned in a house of prostitution and takes pleasure in watching her have intercourse with a man whom he kills when she tries to escape with him. Terrified of Popeye, she testifies that another man committed the murder, and is taken from court by her father, who has finally been able to locate her. Popeye is later apprehended on another charge of murder and is convicted.
There are no vulgar Saxon words in the book, but the situations are stark and unrelieved. It makes one shudder to think of what can happen by misadventure.
6. " Wild Palms", by William Faulkner; Random House, 1939.
This book concerns a wife who left her husband and children to seek integrity of experience, in terms of vitality, with her lover; " hunger is in...
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