People v. Pesky

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM.
Citation254 N.Y. 373,173 N.E. 227
PartiesPEOPLE v. PESKY.
Decision Date24 October 1930

254 N.Y. 373
173 N.E. 227

PEOPLE
v.
PESKY.

Court of Appeals of New York.

Oct. 24, 1930.


Philip Pesky was convicted in the Court of Special Sessions of the City of New York of unlawfully possessing an indecent book in violation of Penal Law, § 1141, and from a judgment of the Appellate Division (230 App. Div. 200, 243 N. Y. S. 193), affirming judgment, defendant appeals by permission.

Affirmed.

LEHMAN and KELLOGG, JJ., dissenting.


[254 N.Y. 373]Appeal from Supreme Court, Appellate Division, First department.

K. Henry Rosenberg, of New York City, for appellant.

Morris L. Ernst, of New York City, amicus curiae.


Thomas C. T. Crain, Dist. Atty., of New York City (John C. McDermott, of New York City, of counsel), for the People.

PER CURIAM.

This court is a court of review, restricted in cases of this order to a pronouncement of the law, and without power to act as a trier of the facts.

If those charged with the duty to pass judgment upon the facts might say not unreasonably that the book sold by the defendant was obscene, lewd, or indecent beyond a reasonable doubt (Penal Law, § 1141 [Consol. Laws, c. 40]), we are not at liberty to substitute our judgment for theirs, or to supersede[254 N.Y. 374]their function as the spokesmen of the thought and sentiment of the community in applying to the book complained of the standard of propriety established by the statute.

A different question would be here if we could say as a matter of law that the writing is so innocuous as to forbid the submission of its quality to the triers of the facts. We cannot say that here.

The judgment should be affirmed.

CARDOZO, C. J., and POUND, CRANE, O'BRIEN, and HUBBS, JJ., concur.
LEHMAN and KELLOGG, JJ., dissent.

Judgment affirmed.

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13 practice notes
  • Brown v. Kingsley Books, Inc.
    • United States
    • New York Court of Appeals
    • April 27, 1956
    ...divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 799; People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y. Page 642 408) and by the United States Supreme Court. (See United States v. Alpers, 338 U.S. 680, 70 ......
  • People v. Fritch
    • United States
    • New York Court of Appeals
    • July 10, 1963
    ...law the writing could be said to be so innocuous as to forbid its submission [13 N.Y.2d 124] to the trial of the facts (People v. Pesky, 254 N.Y. 373, 173 N.E. 227). However, as this court stated in the Richmond County News case, Page 6 supra, 9 N.Y.2d pp. 580-581, 216 N.Y.S.2d p. 370, 175 ......
  • People v. Richmond County News, Inc.
    • United States
    • New York Court of Appeals
    • May 25, 1961
    ...'obscene', but whether that finding is justified requires us despite contrary intimations in some of our decisions (see People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y. 408, [175 N.E.2d 682] 410) to make an independent constitutional appraisal of the magazine. This cou......
  • Bantam Books, Inc. v. Melko, No. C--1209
    • United States
    • Superior Court of New Jersey
    • March 31, 1953
    ...Hicklin case, although it was applied to Schnitzler's Reigen in People v. Pesky, 230 App.Div. 200, 243 N.Y.S. 193 (App.Div.1930), affirmed 254 N.Y. 373, 173 N.E. 227 (Ct.App.1930). All but two cases arose under section 1141 of the Penal Law, passed in its original form in 1884 and prohibiti......
  • Request a trial to view additional results
13 cases
  • Brown v. Kingsley Books, Inc.
    • United States
    • New York Court of Appeals
    • April 27, 1956
    ...divided court, 335 U.S. 848, 69 S.Ct. 79, 93 L.Ed. 398; People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 799; People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y. Page 642 408) and by the United States Supreme Court. (See United States v. Alpers, 338 U.S. 680, 70 ......
  • People v. Fritch
    • United States
    • New York Court of Appeals
    • July 10, 1963
    ...law the writing could be said to be so innocuous as to forbid its submission [13 N.Y.2d 124] to the trial of the facts (People v. Pesky, 254 N.Y. 373, 173 N.E. 227). However, as this court stated in the Richmond County News case, Page 6 supra, 9 N.Y.2d pp. 580-581, 216 N.Y.S.2d p. 370, 175 ......
  • People v. Richmond County News, Inc.
    • United States
    • New York Court of Appeals
    • May 25, 1961
    ...'obscene', but whether that finding is justified requires us despite contrary intimations in some of our decisions (see People v. Pesky, 254 N.Y. 373, 173 N.E. 227; People v. Muller, 96 N.Y. 408, [175 N.E.2d 682] 410) to make an independent constitutional appraisal of the magazine. This cou......
  • Bantam Books, Inc. v. Melko, No. C--1209
    • United States
    • Superior Court of New Jersey
    • March 31, 1953
    ...Hicklin case, although it was applied to Schnitzler's Reigen in People v. Pesky, 230 App.Div. 200, 243 N.Y.S. 193 (App.Div.1930), affirmed 254 N.Y. 373, 173 N.E. 227 (Ct.App.1930). All but two cases arose under section 1141 of the Penal Law, passed in its original form in 1884 and prohibiti......
  • Request a trial to view additional results

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