Commonwealth v. Isenstadt

• Decision Date: 17 September 1945
• Citation: 318 Mass. 543,62 N.E.2d 840
• Parties: COMMONWEALTH v. ABRAHAM A. ISENSTADT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 543

62 N.E.2d 840

COMMONWEALTH v. ABRAHAM A. ISENSTADT.

Supreme Judicial Court of Massachusetts, Middlesex.

September 17, 1945

May 7, 1945.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & WILKINS, JJ.

Obscene, Indecent or Impure Publication. Constitutional Law, Police power. Evidence, Opinion: expert; Relevancy and materiality Judicial notice. Pleading, Criminal, Complaint.

A conviction upon a complaint under G. L. (Ter. Ed.) c. 272, Section 28, as in force in 1944, charging the defendant with selling and having in his possession for the purpose of sale, exhibition, loan or circulation a certain book which was "obscene indecent, or impure, or manifestly tends to corrupt the morals of youth," was warranted, where the defendant raised no question as to the disjunctive form of the complaint, if any one of the several offences disjunctively set forth was found to have been committed, so far as such offences were susceptible of differentiation.

A finding beyond a reasonable doubt that a certain book of fiction, intended for general sale, was obscene, indecent, or impure, or manifestly tended to corrupt the morals of youth, in violation, in 1944, of G. L. (Ter. Ed.) c. 272, Section 28, in its then form, was warranted within the principles that, to come within the statute, the book must contain prohibited matter in such quantity or of such nature as to flavor the whole and impart to the whole any of the qualities stated in the statute so that the book as a whole could fairly be described by any of the adjectives or descriptive expressions contained in the statute; that the test of unlawfulness was to be found in the book's effect upon its probable readers and not in any classification of its subject matter or of its words as being in themselves innocent or obscene; that the statute was not intended to set up any standard merely of taste but dealt with matters of sex and sexual desire; that the book must be judged in the light of the customs and habits of thought of the time and place of the alleged offence; that the probable "audience" of the book must be taken into account; that the statute was intended for the protection of the public as a whole, without segregating either the most susceptible or the least susceptible, and to apply to a book which adversely affected a substantial proportion of its readers; and that the book was not removed from the operation of the statute merely because it was a work of sincerity and art or a work in which those elements predominated. LUMMUS, J., agreeing with the construction of the statute by the court, dissented only from the conclusion that the evidence warranted the finding of guilty.

A book, obviously intended for general sale, having a substantial tendency to deprave or corrupt substantial numbers of that public into whose hands it was likely to fall by inciting lascivious thoughts or arousing lustful desire, was "obscene, indecent or impure" within the prohibition of G. L. (Ter. Ed.) c. 272, Section 28, as in force in 1944.

Proof merely that a book tended to coarsen or vulgarize youth did not necessarily prove that it "manifestly tends to corrupt the morals of youth" within the prohibition of G. L. (Ter. Ed.) c. 272, Section 28, as in force in 1944. A conviction, based upon a warranted finding of violations in 1944 of G. L.

(Ter. Ed.) c. 272, Section 28, in its then form, was not in contravention of the Fourteenth Amendment to the Constitution of the

United States; the statute was within the police power of the Commonwealth.

At the trial of complaints charging the defendant with selling a certain book of fiction and having it in his possession for the purpose of sale, exhibition, loan, or circulation, in 1944, in violation of G. L. (Ter.

Ed.) c. 272, Section 28, in its then form, testimony offered as opinions of experts, that the book was sincerely written; that it would elevate rather than corrupt morals; that it would not create lustful or lecherous desires in anyone; and that it was "perfectly consistent with the regular flow of literature now publicly sold in the Commonwealth," properly was excluded; the probable effect of the book upon the general public who might read it was not a proper subject of testimony by experts.

Evidence, that there were sold daily without prosecution books containing material more likely to corrupt the morals of youth than a book which was the subject of a complaint under G. L. (Ter. Ed.) c. 272, Section

28, as in force in 1944, properly was excluded at the trial of such complaint.

At the trial of a complaint charging the defendant with selling and having in his possession for the purpose of sale, exhibition, loan, or circulation, in 1944, in violation of G. L. (Ter. Ed.) c. 272, Section

28, in its then form, a certain book which was "obscene, indecent, and impure, or manifestly tends to corrupt the morals of youth," a request for a ruling making the effect of the book upon youth the sole test of applicability of the statute properly was refused.

At the trial of a complaint charging the defendant with selling a certain book of fiction and having it in his possession for the purpose of sale, exhibition, loan, or circulation, in 1944, in violation of G. L. (Ter.

Ed.) c. 272, Section 28, in its then form, a request for a ruling that, in determining guilt, the judge "should take into consideration the attitude of the community in accepting or rejecting the book," properly was refused in the absence of evidence of what was such "attitude"; the judge could not be required to take judicial notice thereof.

TWO COMPLAINTS, received and sworn to in the Third District Court of Eastern Middlesex on April 26, 1944.

On appeal to the Superior Court, and upon waiver by the defendant of a trial by jury, the complaints were heard together by Hanify, J.

At the request of the defendant, the trial judge granted the following rulings: "13. As a matter of law, unless the entire book, Strange Fruit, judged as a whole is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth, then the sale or possession for sale of Strange Fruit is not within the provisions of G. L. (Ter. Ed.) c. 272, Section 28, as amended." "17. As a matter of law in determining whether the defendant is guilty of violating the provisions of G. L. (Ter. Ed.) c. 272, Section 28, as amended, the court should take into consideration the present-day standards and conventions of the community as to interpreting or defining what is obscene, indecent, impure or manifestly tends to corrupt the morals of the youth."

The trial judge refused requests by the defendant for rulings as matters of law (3) that the book, Strange Fruit, was "not obscene"; (4) that it was not "indecent"; (5) that it was not "impure"; (6) that it did not "manifestly tend to corrupt the morals of the youth"; (7) that its distribution among the public did "not create a clear and present danger to the public morals or safety"; and (8) that, if it did not do so, to apply the statute to the book would be unconstitutional in that it would unreasonably infringe upon the freedom of the press, and (9) "would deprive the defendant of his property and liberty," contrary, to the Fourteenth Amendment to the Federal Constitution, and (10) would amount to an unreasonable discriminatory application of the statute in violation of said Amendment; (11) that the statute is "invalid and void" because "vague, indefinite, uncertain and ambiguous," in violation of said Amendment; (12) that any finding by the court "that certain words, passages, or chapters are obscene, indecent, or impure, or manifestly tend to corrupt the morals of the youth" did "not permit the finding that the book as a whole is obscene, indecent or impure or manifestly tends to corrupt the morals of youth within the meaning of the provisions of" the statute; and also the following requests: "14. As a matter of law the defendant cannot be found to be guilty . . . unless it is found that the manifest tendency of the book as a whole is either to lower the standards of right and wrong among the youth concerning sexual behavior or to encourage among youths unlawful indulgences or lust, or to incite among youth immorality relating to sexual impurity"; and "16. As a matter of law in determining whether the defendant is guilty . . . the court should take into consideration the attitude of the community in accepting or rejecting the book"; and "18. If the court finds that the book . . . is a serious novel, honest and sincere in its delineation, then the defendant is not guilty"; and "19. The test which must be applied in determining guilt or innocence is the entire book's dominating effect, and, in applying the test, the relevancy of the objectionable parts to the theme and the established reputation of the work in the estimation of approved critics are persuasive pieces of evidence."

The defendant was found guilty on both complaints, and alleged exceptions.

A. O. Dawson of New York & A.

A. Albert, (J.

N. Welch with them,) for the defendant.

G. E. Thompson, District Attorney, & A.

DiCicco, Jr., Assistant District Attorney, for the Commonwealth, submitted a brief.

H. Williams, by leave of court, submitted a brief as amicus curiae.

QUA, J. The defendant has been found guilty by a judge of the Superior Court sitting without jury upon two complaints charging him respectively with selling and with having in his possession for the purpose of sale, exhibition, loan, or circulation a book published under the title "Strange Fruit," which is "obscene, indecent or impure, or manifestly tends to corrupt the morals of youth." G. L. (Ter. Ed.) c. 272, Section 28, as amended by St. 1934, c. 231, and St 1943, c. 239. The section (except...