People v. Eagle

• Decision Date: 24 November 1952
• Citation: 203 Misc. 598
• Parties: The People of the State of New York, Plaintiff,<BR>v.<BR>Martin Eagle, Defendant.
• Court: New York District Court

203 Misc. 598

The People of the State of New York, Plaintiff,

v.Martin Eagle, Defendant.

November 24, 1952.

Leo Dikman and Alvin L. Korngold for defendant.

Louis L. Roos and Joseph T. McDonough for plaintiff.

SHAPIRO, M.

The defendant is charged with possessing, with intent to sell, or distribute, certain lewd and indecent pictures, in violation of subdivision 1 of section 1141 of the Penal Law.

That section, so far as is here material, reads as follows: "1. A person who * * * has in his possession with intent to sell * * * distribute * * * any obscene, lewd, lascivious, filthy, indecent or disgusting * * * picture * * * is guilty of a misdemeanor".

This case directly raises the question whether pictures which depict women in various poses with their naked breasts and buttocks exposed come within the condemnation of the above statute.

The People contend that they do. The defendant contends that "judged by present day standards" these pictures are not obscene, lewd, lascivious, filthy, indecent, or disgusting.

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) nor use as a sole test of obscenity the picture's "capability of suggesting impure thoughts" because "The presence of a woman of the purest character and of the most modest behavior and bearing may suggest to a prurient imagination images of lust, and excite impure desires" (People v. Muller, 96 N.Y. 409, 411), nor whether the picture, or representation, would merely "tend to coarsen or vulgarize the youth who might witness it" (People v. Wendling, 258 N.Y. 451, 453), yet if the picture not only "tends to coarsen or vulgarize the youth" but also tends "to lower their standards of right and wrong, specifically as to the sexual relation" (People v. Wendling, supra, p. 453); if it has the effect of stimulating impure sexual impulses and the tendency to "excite lustful and lecherous desires" (People v. Eastman, 188 N.Y. 478, 480); if it is "calculated to appeal to the baser instincts of mankind" (People v. Fellerman, 243 App. Div. 64, 65, affd. 269 N.Y. 629) it should properly be held to come within the ban of the statute.

It is argued by the defendant that these photographs are not obscene because "mere nudity in painting or sculpture is not obscenity" (People v. Muller, supra, p. 411), and because these pictures "have been sold throughout the United States and are actually today being sold in bookshops, on Broadway, Madison and Fifth Avenues, in the City of New York."

The obvious fact, however, is that these pictures are not works of art — they are cheap, tawdry, disgusting exhibitions of female nudity in various insinuating poses, which could have one purpose and one purpose only, and that to excite in the spectator impure sexual imaginings and to create lustful desire, and, if they are in fact being sold on the highways and byways of this city, the vendors and distributors should be prosecuted diligently and a stop put to such a vicious practice.

That their very coarseness and vulgarity may in some instances tend to repel, rather than to seduce, does not deprive these pictures of their basic indecency.

To sustain them as works of art is to close one's eyes to reality and to disregard the evident malignant and sordid purpose encompassed in their production.

So, too, the pious protestations "that the Court is not to act as a censor and attempt to interfere and regulate the manners, attitude and conduct of the community," but rather "to follow the test already laid down by the behaviour of the people in the community" makes the shameful assumption that these "striptease nudes" starting fully attired and finally winding up in various suggestive and provocative standing, sitting and lying poses, almost entirely devoid of clothes, accord with the ethical and moral standards of our community. If it does, Heaven help our future generations!

I refuse to believe that we must, or should, adjust ourselves to the practices in the Island of Yap, in the Far Pacific (see "Grass-skirted Yap", National Geographic Magazine, Dec. 1952, p. 805 et seq.). I cannot bring myself to believe that our community is so "bikini-minded" that it would sanction and approve the practices shown in these photographs.

False...