#### The People of the State of New York, Respondent, *v.*August Muller, Appellant.

On the trial of an indictment under the provision of the Penal Code (§ 317), making the selling, loaning, giving away or showing of an obscene or indecent book, writing, picture or photograph a misdemeanor, the question of obscenity or indecency is one falling within the range of ordinary intelligence and so does not require an expert in literature or art to determine.

The testimony of an expert, therefore, either as to his own opinion or the ¡opinion of a class or part of community upon that question, is incompetent.

On the trial of an indictment for selling obscene and indecent photographs defendant called as a witness an artist and asked him if there was a distinguishing line as understood by artists between pure and obscene and indecent art; this was objected- to and excluded. *Held, no error;*that if the question was intended simply to bring out the fact that pictures might be either decent or indecent and that the canons of pure art would accept those of one class and reject the others, it was properly rejected as an attempt to prove a self-evident proposition, if the question was intended to be followed by proof th^-t, according to the artists’ standard, the photographs in question were not obscene or indecent; it was properly rejected as such proof was incompetent; also *held,*that the intent of the defendant in selling the photographs was not an element in determining his guilt; and that therefore evidence of intent was incompetent.

(Argued June 9,1884;

decided October 7, 1884.)

Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 28,1882, which affirmed a judgment of the Court *409of Oyer and Terminer for the city and county of ¡New York, entered upon a verdict convicting defendant of a misdemeanor in selling certain alleged obscene and indecent photographs.

The material facts are stated in the opinion.

*John D. Townsend*for appellant.

The court erred in refusing to allow defendant to prove by experts that there exists a distinguishing line as understood by artists between pure art and obscene and indecent art. *{R. c& 8. R. R. Co.*v. *Bud-\ long,*10 How. Pr. 290; *Lamoure*v. Caryl, 4 Denio, 370 ;¡ *Greenfield*v. *People, etc.,*85 N. Y. 83; *Plainer*v. Plainer,! 78 id. 90.)

*John Vincent*for respondent.

Whether the statute was violated was a question of fact to be determined by the jury upon inspection of the pictures, and an examination of them will demonstrate that fact. *{Reg.*v. *Hiclelin,*L. B., 3 Q. B. 360.)

Andrews, J.

The first count in the indictment charges the defendant with selling indecent and obscene photographs, representing nude females in lewd, obscene, indecent, scandalous and lascivious attitudes and postures, and the second count charges him with having in his possession divers, lewd, scandalous, obscene and indecent photographs of the same character, with intent to sell the same. Section 317 of the Penal Code declares among other things that a person who sells, lends, gives away, or offers to give away, or shows, or has in his possession with intent to sell, or give away, or to show, or advertises, or otherwise offers for loan, gift, sale, or distribution, an obscene or indecent book, writing, paper, picture, drawing or photograph, is guilty of a misdemeanor. The evidence on the trial in support of the indictment related to nine photographs produced before the jury, which were proved to have been sold by the defendant in the ordinary course of his employment as a clerk in a store for the sale of books, pictures and photographs, in the city of New York. The record contains no special description of the photographs, except that it appears *410that they represented nude females, and were photographic copies of paintings which had been exhibited in the Salon in Paris, and one of them at the centennial exhibition in Philadelphia, and that among them were pictures designated “ La Asphyxie,” “After the Bath,” and “ La Baigneuse.”

The jury by their verdict of guilty necessarily found that the photographs were obscene and indecent. The exhibits were produced on the argument of the appeal at the General Term, and the court in its opinion expressed its concurrence with the finding of the jury, saying that they might very well have found that the photographs were both indecent and obscene. They were not produced in this court, and we are unable to pass upon the question of their obscenity or indecency from an inspection of the pictures themselves. If the defendant’s counsel desired to insist in this court that the photographs were not in fact indecent or obscene, and that this appeared from the photographs themselves, and that the finding of the jury was therefore without evidence to support it, it was his duty to have furnished them as a part of the record, or to have insisted upon their production by the district attorney. Upon the case as presented we must assume that the pictures were of the character described in the indictment.

But exceptions were taken by. the defendant on the trial which render it necessary to consider to some extent the scope of the statute, the method of trying the issue of obscenity and indecency, and the relevancy of proof of an innocent intent on the part of a defendant charged with a violation of the -statute. It is to be observed that the statute does not undertake to define obscene or indecent pictures or publications. But the words used in the statute are themselves descriptive. They are words in common use, and every person of ordinary intelligence understands their meaning, and readily and in most cases accurately applies them to any object or thing brought to his attention which involves- a judgment as to the quality indicated. It does not require an expert in art or literature to determine whether a picture is obscene or whether printed words are offensive to decency *411and good morals. These are matters which fall within the range of ordinary intelligence, and a jury does not require to be informed by an expert o before pronouncing upon them. It is evident that mere nudity in painting or sculpture is not obscenity. Some of the great works in painting and sculpture as all know represent nude human forms. It is a .false delicacy and mere prudery which would condemn and banish from sight all such objects as obscene, simply, on account of their nudity. If the test of obscenity or indecency in a picture or statue is its capability of suggesting impure thoughts, then indeed all ' such representations might be considered as indecent or obscene. 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, and so may a picture or statue not in fact indecent or obscene.

The test, of an obscene book was stated in *Regina*v. *Hicklin*(L. R., 3 Q. B. 369), to be, whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come into contact with it. We think it would also be a proper test of obscenity in a painting or statue, whether the motive of the painting, or statue, so to speak, as indicated by it, is pure or impure, whether it is naturally calculated to excite in a spectator impure imaginations, and whether the other incidents and qualities, however attractive, were merely accessory to this as the primary or main purposes of the representation.

The defendant on the trial called as witnesses an artist who had practiced painting for many years, and also a person who had been engaged in the study of art. They were .asked by defendant’s counsel whether there was a distinguishing line, as understood by artists,- between pure art and obscene and indecent art. The question was objected to by the prosecutor and excluded by the court. The issue to be tried was whether the particular photographs in question were obscene or indecent. The defendant was entitled to prove in his defense any facts legitimately bearing upon this issue. The fact that the original pictures of which the photographs were copies had been exhib*412ited in the Salon in Paris was admitted by the prosecution, and it was proved that one of them had been publicly exhibited in . Philadelphia. But this did not, as matter of law, exclude a finding by the jury that the photographs were obscene and indecent. It is not impossible certainly that the public exhibition of indecent pictures may have been permitted in Paris or Philadelphia, and the fact that a picture had been publicly exhibited would not necessarily determine its character as decent or indecent. Indeed there is but little scope for proof bearing upon the issue of decency or obscenity, beyond the evidence furnished by the picture itself.. The question which was excluded, if intended to bring out the fact that pictures might be either decent or indecent, and that the canons of pure art would accept those of one class and reject those of the other, was properly overruled as an attempt to prove a self-evident proposition. If the question was intended to be followed by proof that, according to the standard . of judgment adopted and recognized by artists, the photographs *\*in question were not obscene or indecent, it was properly re- ' jected for the reason that the issue was not whether in the opinion of witnesses, or of a class of people, the photographs were indecent or obscene, but whether they were so in fact, and upon this issue witnesses could neither be permitted to give their own opinions, or to state the aggregate opinion of a particular class or part of the community. To permit such evidence would put the witness in the place of the jury, and the latter would have no function to discharge. The testimony , of experts is not admissible upon matters of judgment within f the knowledge and experience of ordinary jurymen (1 Greenl. Ev., § 440). The question whether a picture or writing is obscene is one of the plainest that can be presented to a jury, and under the guidance of a discreet judge there is little danger of their reaching a wrong conclusion. The opinions of witnesses would not aid the jury in reaching a conclusion, and their admission would contravene the general rule that facts and not opinions are to be given in evidence.

The defendant’s counsel at the conclusion of the evidence *413made several requests to charge, which were denied by the trial judge. The leading purpose of those requests was to induce the court to lay down the rule that the intent of a defendant in selling a picture claimed to be indecent and obscene is an important element in determining his guilt. The statute makes the selling of an obscene and indecent picture a misdemeanor. There is no exception by reason of any special intent in making the sale. The object of the statute was to suppress the traffic in obscene publications, and to protect the community against the contamination and pollution arising from their exhibition and distribution. It would we conceive be no answer to an indictment under the statute for the sale of an obscene picture, that it was sold to a person not liable to be injured by it, or that it was a picture, in respect to execution, of distinguished merit. In *Regina*v. *Hieklin (supra),*the question was whether a certain book was obscene and liable to seizure for that reason under an English statute. It appeared that it was published, to expose the alleged immoralities of private confession in the Roman Catholic Church. But the court having found that passages purporting to be extracts from the writings_ of Roman Catholics were obscene in fact, it was held that the intent of the publication, however innocent, was no answer to the proceeding.

We do not doubt that whether a publication is obscene or not may in some cases depend on circumstances. For example, a medical book for the instruction of medical men may contain illustrations suitable and proper as a part of the work, but which, if detached and published alone for circulation, might' be deemed indecent within the statute. In the present case there was no evidence to which the requests to charge were applicable. The pictures in question were kept for general sale, except that they were not sold to boys under twenty-one years of age. The requests, as applied to the case, were a series of abstract propositions having no relation to the issue, and were on that ground, independently of any other consideration, properly denied. We find no error in the record. The case seems to have been fairly tried and was submitted to *414the jury in a careful charge, and with the verdict of the jury this court cannot interfere. The statute is an important one, and while it should have a reasonable and not a strained construction, at the same time it ought to have such a practical interpretation by the court and jury, as will subserve the important purpose of its enactment.

The judgment should be affirmed.

All concur.

Judgment affirmed.