People v. Wendling

CourtNew York Court of Appeals
Writing for the CourtPOUND
Citation258 N.Y. 451,180 N.E. 169
PartiesPEOPLE v. WENDLING et al. SAME v. ELLMORE et al.
Decision Date03 March 1932

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.


[258 N.Y. 451]Appeal from Supreme Court, Appellate Division, Second department.

[258 N.Y. 452]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; [258 N.Y. 453]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...

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21 practice notes
  • Burke v. Kingsley Books, Inc.
    • United States
    • United States State Supreme Court (New York)
    • June 13, 1955
    ...96 N.Y. 408, 411; People v. Berg, 241 App.Div. 543, 272 N.Y.S. 586, affirmed 269 N.Y. 514, 199 N.E. 513; but see People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. [208 Misc. 157] The only question before the court in Besig v. United States, 9 Cir., 208 F.2d 142, was whether the......
  • Brown v. Kingsley Books, Inc.
    • United States
    • New York Court of Appeals
    • April 27, 1956
    ...& Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed by equally 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 ......
  • People v. Heller
    • United States
    • New York Court of Appeals
    • December 28, 1973
    ...Inc., 14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14 (reversal of conviction for selling materials to minors); People v. Wendling, 258 N.Y. 451, 180 N.E. 169 (portrayal of characters in a play as coarse and vulgar, who employ coarse and vulgar language, not obscene); People v. Stabile, 58 M......
  • Parmelee v. United States, No. 7332.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 1940
    ...to the weakest of its members." See also, Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1, 136 N. E. 219; People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 29 See Lynch v. United States, 7 Cir., 285 F. 162, 163. 30 United States v. Levine, 2 Cir., 83 F.2d 156, 157; Alper......
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21 cases
  • Burke v. Kingsley Books, Inc.
    • United States
    • United States State Supreme Court (New York)
    • June 13, 1955
    ...96 N.Y. 408, 411; People v. Berg, 241 App.Div. 543, 272 N.Y.S. 586, affirmed 269 N.Y. 514, 199 N.E. 513; but see People v. Wendling, 258 N.Y. 451, 453, 180 N.E. 169, 81 A.L.R. [208 Misc. 157] The only question before the court in Besig v. United States, 9 Cir., 208 F.2d 142, was whether the......
  • Brown v. Kingsley Books, Inc.
    • United States
    • New York Court of Appeals
    • April 27, 1956
    ...& Co., 297 N.Y. 687, 77 N.E.2d 6, affirmed by equally 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 Supr......
  • People v. Heller
    • United States
    • New York Court of Appeals
    • December 28, 1973
    ...Inc., 14 N.Y.2d 409, 252 N.Y.S.2d 433, 201 N.E.2d 14 (reversal of conviction for selling materials to minors); People v. Wendling, 258 N.Y. 451, 180 N.E. 169 (portrayal of characters in a play as coarse and vulgar, who employ coarse and vulgar language, not obscene); People v. Stabile, 58 M......
  • Parmelee v. United States, No. 7332.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 14, 1940
    ...weakest of its members." See also, Halsey v. New York Soc. for Suppression of Vice, 234 N.Y. 1, 136 N. E. 219; People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 29 See Lynch v. United States, 7 Cir., 285 F. 162, 163. 30 United States v. Levine, 2 Cir., 83 F.2d 156, 157; Alpert,......
  • Request a trial to view additional results

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