United States v. Levine, 252.

• Decision Date: 06 April 1936
• Docket Number: No. 252.,252.
• Citation: 83 F.2d 156
• Parties: UNITED STATES v. LEVINE.
• Court: U.S. Court of Appeals — Second Circuit

83 F.2d 156 (1936)

UNITED STATES v. LEVINE.

No. 252.

Circuit Court of Appeals, Second Circuit.

April 6, 1936.

Harry A. Lieb, of New York City (Morris L. Ernst, Newman Levy, Alexander Lindey, and Eugene M. Kline, all of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (Joseph P. Martin, Asst. U. S. Atty., and Thomas B. Flynn, Sp. Asst. U. S. Atty., both of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The defendant was indicted in one count for posting an obscene circular, and in eight subsequent counts for posting obscene circulars advertising obscene books. The jury brought in a verdict of guilty only on the eighth count and the others were dismissed; the circular laid in that count was alleged to have advertised five books, of which only three are before us; they are entitled, "Secret Museum of Anthropology," "Crossways of Sex" and "Black Lust." The first is a reproduction of a collection of photographs, for the most part of nude female savages of different parts of the world; the legitimacy of its pretensions as serious anthropology is, to say the most, extremely tenuous, and, while in the hands of adults it could not be considered obscene, it might be undesirable in those of children or youths. The second book professes to be a scientific treatise on sexual pathology; again its good-faith is more than questionable; for example, the author, a supposititious scientist, remains anonymous. It could have no value to psychiatrists or others genuinely interested in the subject, and in the hands of children it might be injurious. The third is a work of fiction of considerable merit, but patently erotic, describing the adventures of an English girl captured by the Dervishes at the fall of Khartoum and kept in a harem until the Battle of Omdurman, when she is killed. It purports to be a study in sadism and masochism, and would arouse libidinous feelings in almost any reader. There was nothing to distinguish the addressee in the eighth count or to indicate why the jury should have selected him alone. He was only allowed to identify the circular, an objection being sustained to his testimony that he had delivered it over to his father when he got it, as he had been directed. As the record stands he may have been of any age. In the case of several other counts it did appear that the addressees were minors, but the judge declared that the buyer's age was immaterial and took the issue from the jury.

The defendant took a number of exceptions during the trial with most of which we need not concern ourselves, because they will not reappear upon the next trial, which must be had because we cannot accept the charge. The judge first said that the statute (Cr.Code, § 211, 18 U.S. C.A. § 334) was directed against stimulating sensuality, and that this was not to be measured by its effect, either upon "the highly educated" or upon the "highly prudish," but "on the usual, average human mind." This was well enough, so far as it went, but later he in substance took it back. There was a class, he said, "found in every community, the young and immature, the ignorant and those who are sensually inclined"; the statute was meant to protect these and the jury should regard the effect of the books on their minds, rather than on those of "people of a high order of intelligence and those who have reached mature years." If the books contained a "single passage" such as would "excite lustful or sensual desires" in the minds of those "into whose hands they might come," the statute condemned them. This the defendant challenged and the judge said he would modify it, but he did not; the attempted modification was in substance a repetition of what he had said before. The standard so put before the jury was indeed within the doctrine laid down in Regina v. Hicklin, L.R. 3 Q.B. 360, and United States v. Bennett, Fed.Cas.No.14,571, 16 Blatchf. 338, though the Supreme Court has never approved it. Rosen v. U. S., 161 U.S. 29, 42, 16 S.Ct. 434, 480, 40 L.Ed. 606, has at times been supposed to do so, and the charge then before the court did indeed follow Regina v. Hicklin, so that the accused might have raised the point now at bar. But he did not; his only complaint, which the court overruled, was that the judge should not have left it to the jury at all to say whether the publication was obscene, but should have decided the question himself. It is true that United States v. Bennett, supra, has been followed at nisi prius, but without considering the point specifically, merely repeating the phrase that the decisive question was the effect upon any persons into whose hands the book might fall. United States v. Bebout (D.C.) 28 F. 522; United States v. Clarke (D.C.) 38 F. 732; United States v. Smith (D.C.) 45 F. 476. United States v. Wightman (D.C.) 29 F. 636, approved this obiter. At times even in these decisions, e. g., United States v. Clarke and United States v. Smith, there were intimations that the standard might depend upon those to whom the publication was addressed, and...