People v. Wendling

• Citation: 258 N.Y. 451,180 N.E. 169
• Parties: PEOPLE v. WENDLING et al. SAME v. ELLMORE et al.
• Decision Date: 03 March 1932
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 451

180 N.E. 169

PEOPLE

v.WENDLING et al.

SAME

v.ELLMORE et al.

Court of Appeals of New York.

March 3, 1932.

In separate actions against Charles Wendling and others, and against Lee Ellmore and another, defendants were convicted of violating section 1140-a of the Penal Law (Consol. Laws, c. 40), prohibiting the production of obscene plays. From order of the Appellate Division, Second Department (233 App. Div. 704, 249 N. Y. S. 958), affirming judgments of Special Sessions convicting defendants, they appeal.

Judgment in each action reversed, and informations dismissed.

CRANE, O'BRIEN, and HUBBS, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Harry H. Oshrin, of New York City, for appellants.

Charles P. Sullivan, Acting Dist. Atty., of Long Island City (Mordecai Konowitz, of New York City, of counsel), for the People.

POUND, J.

The prosecution herein arises out of the dramatization of the ancient folk song ‘Frankie and Johnnie,’ which told the tale of the adventures of Johnnie, a country boy, in a St. Louis resort for drinking, gambling and prostitution in the middle of the last century.¹

The language of the play is coarse, vulgar and profane; the plot cheap and tawdry. As a dramatic composition it serves to degrade the stage where vice is thought by some to lose ‘half its evil by losing all its grossness.’ ‘That it is ‘indecent’ from every consideration of propriety is entirely clear' (People v. Eastman, 188 N. Y. 478, 480,81 N. E. 459, 460,11 Ann. Cas. 302), but the court is not a censor of plays and does not attempt to regulate manners. One may call a spade a spade without offending decency, although modesty may be shocked thereby. People v. Muller, 96 N. Y. 408, 411,48 Am. Rep. 635. The question is not whether the scene is laid in a low dive where refined people are not found or whether the language is that of the barroom rather than the parlor. The question is whether the tendency of the play is to excite lustful and lecherous desire. People v. Eastman, supra; People v. Muller, supra.

Prostitutes are not so rarely representated on the stage as to arouse the sexual propensities of the spectators whenever they appear. G. B. Shaw's play, ‘Mrs. Warren's Profession,’ deals, in the language of the polite dramatist, with what has been styled ‘the oldest profession in the world.’ The heroine of ‘Rain’ was a seductive harlot. Scenes of ‘The Shanghai Gesture’ are laid in a house of bad character. ‘Lysistrata’ is frank in the discussion of sex relations, but does not excite desire as might the lascivious display of female charms. The Bible talks bluntly of harlots and whores, but it does not incite to immorality. (Rev. 17, 18.)

The play is said to ‘tend to corrupt the morals of youth.’ Here again the question is not whether it would tend to coarsen or vulgarize the youth who might witness it, but whether it would tend to lower their standards of right and wrong, specifically as to the sexual relation. Unless the mere representation on the stage of prostitutes and their patrons would tend to have the effect of stimulating sexual impulses, the performance should not be barred. United States v. Dennett (C. C. A.) 39 F.(2d) 564, 76 A. L. R. 1092;United States v. One Obscene Book Entitled ‘Married Love’ (D. C.) 48 F.(2d) 821;United States v. One Book, Entitled ‘Contraception’ by Marie C. Stopes (D. C.) 51 F.(2d) 525.

Compare the seductive ‘studies in the etiquette of the liaison and all its nuances' with their accompanying appeal to sexual passion contained in Schnitzler's ‘Reigen,’ where it was held by a divided court that the finders of fact might pronounce the book obscene by applying local standards of propriety thereto (People v. Pesky, 230 App. Div. 200, 202, 243 N. Y. S. 193, affirmed 254 N. Y. 373, 173 N. E. 227), with this uncultured depiction of a phase in the frontier life of the middle west. A coarse realism is its dramatic offense. Perhaps in an age of innocence the facts of life should be withheld from the young, but a theater goer could not give his approval to the modern stage as ‘spokesman of the thought and sentiment’ of Broadway (Halsey v. New York Society for Suppression of Vice, 234 N. Y. 1, 136 N. E. 219) and at the same time silence this rough hewn and profane representation of scenes which repel rather than seduce.

The production of such a play may be repulsive to puritanical ideas of propriety, as would ‘Camille,’ and may be offensive to the more liberal minded as lacking in...