#### The People of the State of New York, Appellant, *v.*Newton L. A. Eastman, Respondent.

(Argued April 4, 1907;

decided May 21, 1907.)

Crimes — Indecent Publications—Penal Code, § 317. The word “ indecent,” as used in section 317 of the Penal Code, relates to obscene prints or publications. It is not an attempt to regulate manners, but it is a declaration of the penalties to be imposed upon the various phases of the crime of obscenity. A publication, therefore, attacking a body of Christian clergymen, although vile, scurrilous and reprehensible, is not indecent unless it is lewd, lascivious, salacious or obscene and has a tendency to excite lustful and lecherous desire.

*People*v. *Eastman,*116 App. Div. 922, affirmed.

Appeal from a judgment and order of the Appellate Division of the Supreme Oourt in the fourth judicial department, entered December 8, 1906, which affirmed a judgment of the Monroe County Court sustaining a demurrer to an indictment charging the defendant with the crime of selling and having in his possession with intent to sell printed matter of an indecent character.

The facts, so far as material, are stated in the opinions.

*Howard H Widener*and *Stephen J. Warren*for appellant.

The statute itself is descriptive of the offense and does *479not describe or attempt to define what is indecent, but forbids *“*printed matter of an indecent character.” *(People*v. *Muller,*96 N. Y. 408; *Regina*v. *Hicklin,*L. R. [3 Q. B.] 369.)

*Albert II Stearns*for respondent.

The publication referred to in the indictment is not “ indecent ” within the meaning and intendment of section 317 of the Penal Code. *(People*v. *Muller,*96NE. Y. 408 ; *People*v. *Allen,*20 Misc. Rep. 120 ; *U. S.*v. *Hartwell,*6 Wall. 396; *U. S.*v. *Wilson,*58 Fed. Rep. 768; *People*v. *Most,*171 N. Y. 423; *U. S.*v. *Smith,*11 Fed. Rep. 663; *U. S.*v. *Bennett,*16 Blatchf. 338; *Dunlop*v. *U. S.,*165 U. S. 486; *Swearingen*v. *U. S.,*161 U. S. 447; *U. S.*v. *Wrightman,*29 Fed. Rep. 636; *McJenkins*v. *State,*10 Ind. 140.)

*Per Ouriam.*

The court is of opinion that the publication set forth in the indictment is improper, intemperate, unjustifiable and highly reprehensible, nevertheless it is not “ indecent” as that word is employed in section 317 of the Penal Code.

The definitions given by the standard lexicographers are not controlling in deciding its legal signification; many meanings as used in ordinary conversation are also irrelevant.

Section 317 of the Penal Code is found in chapter VII, headed as follows: “ Indecent Exposures, Obscene Exhibitions, Books and Prints, and Bawdy and Other Disorderly Houses.”

Section 317 opens as follows : “ § 317. Obscene prints. 1. A person who sells, lends, gives away or shows, or offers to sell, lend, give away, or show, or has in his possession, with intent to sell, lend, or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, *newspaper,*story paper, writing, paper, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character; ”

It is clear from the manner in which the legislature has *480used the word “indecent” that it relates to obscene prints or publications; it is not an attempt to regulate manners, but it I is a declaration of the penalties to be imposed upon the vari*I*ous phases of the crime of obscenity. The word “ indecent ” is used in a limited sense in this connection and falls within the maxim of *nosoitur a sociis.*

The judgment and order appealed from should be affirmed.

. Cullen, Ch. J.

I concur in the opinion of the majority of the court, that the article complained of does not fall within the provisions of section 317 of the Penal Code, under which the defendant was indicted, which section makes it a misdemeanor to sell, give away or show any “ obscene, lewd, lascivious, filthy, indecent or disgusting book, paper or picture,” etc. That the article is a scurrilous and vile attach on a large and respected body of Christian clergymen is unquestionable. That it is *“*indecent ” from every consideration of propriety is entirely clear, but that is not the indecency condemned by this section of the Code. The preceding section punishes indecent exposure of person, the next'section the sale of article for indecent or immoral use. The chapter in which all the sections are found is entitled *“*Indecent exposures, obscene exhibitions, books and prints, and bawdy and other disorderly houses.” From the context of the statute it is apparent that it is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire. That such is not the effect of the publication is clear from the fact that my brother who writes the dissenting opinion publishes it in full, and I am entirely certain that did he believe the tendency of the article was lecherous and salacious, he would find no justification for its publication in the fact that the majority of the court, from whose decision he feels constrained to dissent, entertain a contrary view. In the English case cited'by'my brother no part of the improper publication is reproduced, but the report is confined to a statement of its general character. I regret that the publication should appear in the reports of *481this court, not because I deem it lewd, but because I feel that the reports of this court should not be made the means of perpetuating a scurrilous and wanton slander on any class of the community. This is an example of the extent to which sectarian religious animosities may lead a weak and disordered mind, for it is mere charity to consider such to be the character of the writer of the production. Since, however, the article is to appear, I may challenge its comparison with many that have been published attacking the Mormon church. Surely, publications as to that church have gone far beyond the article now before us. It is no answer to say that the Mormons, wdiile they practiced polygamy, were justly subject to such strictures. The truth or falsity of the writing has no bearing on the guilt or innocence of the defendant under this section of the Code. If the charges contained in this article had been made, not against a class but against a single individual, and that individual a layman, not a clergyman, it would, doubtless, if false, have been a gross libel. But it would not be contended that if true it was indecent and should sub- *j*jeet the party writing it to the penalties prescribed by the Code. ;c ***

It does not necessarily follow that the defendant is amenable to no punishment. The charges in the article being against a whole class, no single individual could maintain an action for libel against its author *(Sumner*v. *Buel,*12 Johns. 475), but not so, however, as regards a criminal prosecution for libel. The foundation of the theory on which libel is made a crime is that by provoking passions of persons libeled, it excites them to violence and a breach of the peace. Therefore, a criminal prosecution can be sustained where no civil action would lie, as for instance, in this very case, where the libel is against a class *(Sumner*v. Buel, *supra; Palmer*v. *City of Concord,*48 N. H. 211; *State*v. *Brady,*44 Kan. 435), and also in the case of a libel against a deceased person. It may be urged that the question whether the defendant should be prosecuted for an indecent publication or for a libel is a technical one. This is very far from being the fact. So careful have the *482people of the state been to secure freedom of speech, subject only to punishment when a jury has found that that freedom has been abused, that by the various Constitutions of this state, ever since that of 1822, it has been expressly enacted that in a prosecution for libel the truth may be given in evidence and the jury shall have the right to determine the law as well as the fact. This applies to no other criminal prosecution.

O’Brien, J.

(dissenting). The defendant was indicted for .selling and exposing for sale certain printed matter of an indecent character. The publication was in a newspaper called “The Gospel Worker.” By section 317 of the Penal Code it is made a misdemeanor to sell, or to have in possession, with intent to sell, or to publish, any written or printed matter of an indecent character.

The defendant demurred to the indictment on the ground that it did not state a crime. The demurrer was sustained at the trial court and at the Appellate Division and the People have appealed to this court. The decision under review is to the effect that the paper referred to in the indictment and set out at length is not of an indecent character and, therefore, not within the "statute. In this respect I think the courts 'below were clearly in error, since, in my opinion, it would be I difficult to compose any writing more indecent and more immoral. It is so indecent that, in my opinion, it is unfit to appear upon the records of this court and it would not appear as a part of this opinion except for the contention at the bar and in the court itself that it is *not*indecent. Of course, if it. is not, then I must be in error in supposing that it is unfit to appear in the records of this court. Therefore, we must allow the writing to speak for itself ; and here it is:

> “The Open Door to Hell

> “Is the confessionabbox. It is hell’s gate. The mainspring to lust. The very embodiment and focus of the virus of hell. It is the very matter and pus that runs, from the corpse in hell. It is the pollution and rottenness of the decay of ages. *483It is the cesspool,' the recipient, the reservoir of lust, of vile thought and communication, adultery, the birthplace of sexual criminality, with men’s wives and young girls, and the convent is earth’s terminus and hell, the lake of fire is the dumping-ground. It is the criminal college. The mother of prostitution. The author of pauperism. From it emanates poison to society, homes, our schools and government. I speak in love. Ho time to trifle. The Anaconda is drawing itself over many a threshold and stinging thousands to death. Ilark! A voice from the tomb, the blood of the innocent crying out, in what sense is the confessional box needed ? The Word of God says, in 1 John, 1, 9, If we confess our sins, He is faithful and just to forgive our sins and to cleanse us from all unrighteousness. You go direct to God Almighty through Jesus Olirist to confess your sins. Hot in a concealed "and seclued place alone. Ho wife can go with her husband. Here the priest asks the vilest of questions, and of course the] husband could not be present. He asks the most delicate1 and intimate questions. But under what obligation is any one to a priest ? What business has he got to go into a box and ask delicate female questions that no minister of Jesus Christ . or true gentleman on earth would ask ? Eight here in the confessional box many have been ruined, and many become mothers as a result; and men, you are paying your money to priests and to a church that is ruining your daughters and stealing the affections of your wife, until he knows more about her than you do. She has many secrets kept from you, husband, but not from that licentious priest. This is all\ true, dear reader, and can be proven by thousands of wit-1 nesses. May it not well be called-the open door to hell? Last month a dear brother gave The Gospel Worker to some in the place where he was at work in this city. It was the January number with the article,£ Break open the Doors and Look In,’ and it caused much excitement. Bloody threats and curses were made, and two could not sleep all night, they were so stirred over the truth in it. Was any one ever benefited in any way by going to the confessional box ? If it *484is advice yon need why go to that secret place? Dear reader, Jesus Christ never instituted the confessional. Would he call lustful, licentious, drinking men to ask such low, vile questions, which are unbecoming for any one to ask another ? I am sure you say no and begin to see the awfulness of it. You might as well confess to a dead dog. The Roman Church teaches you cannot be saved unless you confess to a priest. Read this from their own teaching: ‘ If any one shall say that priests who are in mortal sin have not the power of binding or loosing, or that priests arc not the only ministers of absolution, let him be accursed.’ This does away with Jesus’ blood. It makes God second to this fellow in the confessional box. They teach that every sin, the vilest and lowest, the most criminal, by man and woman, must be confessed to the priest. They do not teach it necessary to repent, but to do penance. Notice, this takes the place of repentance. Penance and confession to a wicked priest necessary to salvation ? Is there any intelligent person on the earth who. believes it? The following is what Margaret L. Shepard, who was for three years an inmate of the Arno’s Court Convent, Bristol,'Eng., says: ‘In a confessional the depth of corruption and womanly degradation is reached. There the seeds of hell are planted in the soul. The thoughts of a young girl áre polluted. Her heart is polluted, her mind becomes familiarized with the most revolting sins of impurity. The lessons engraved in the memory, the heart, the thought, the soul, like the sear of a red-hot iron, leaves its scar. In the confessional young unmarried and married women get accustomed to hear and repeat without a scruple things which would cause even a fallen woman to blush.’ These are the words of one who has been through the above and escaped from their murderous hands. I will close with the above. It is a clincher and positive evidence and witness of all I have said. All unite with me in prayer .that the above will open the eyes of many deceived Romanists and come to the blood of Christ.

> “ N. L. A. EASTMAN,”

*485If this paper is not of an indecent character and within the prohibition of the statute, then it is impossible, as I think, to conceive of any printed matter that would be. It would seem to be a work of supererogation to argue, or to cite authorities, in support of the proposition that a writing so vile and nasty as this appears to be is of an indecent character; but since there appears to be some difference of opinion on the point, whether the writing is indecent or not, I will add that no court has ever held that such a publication could be anything but indecent, at least all the decisions, as I understand them,- hold that such a paper is an indecent publication.

Judge Andrews, in *People*v. *Muller*(96 N. Y. 408), in speaking of section 317, says: “ 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 subject 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 indecent, or whether printed words are offensive to decency and good morals.” Heading the article in question and then applying the common-sense test laid down by Judge Andrews, it is' difficult to see how it could be better defined than as an indecent publication. A few definitions may, however, be given of the word “ indecent” used by the lexicographers. Worcester defines it as something- “ unbecoming; unfit for the eyes or ears.” The Century Dictionary defines it as that which is “ obscene or grossly vulgar; unbecoming, unseemly, violating propriety of language, behavior, etc.” The Imperial Dictionary defines it as “ that which is unbecoming in language, actions or manners.” In the case of *United States*v. *Loftis*(12 Fed. Rep. 671) the opinion states that the term “indecent” signifies “ more than indelicate, and less than immodest; ” that it means “ something unfit for the eye or ear.”

In .reading this statute there may be some danger of falling into the error of construing “ indecent ” as synonymous with *486
      *“*lewd, lascivious,” etc., used in connection with it, but an examination of the language of the section, from its appearance in the originál Code of 1881 to the present time, clearly discloses that the word does not necesarily have any reference to morals. The prohibition is against an “ obscene *or*indecent ” publication.

In *Reg.*v. *Hicklin*(L. R. [3 Q. B.] 360) the defendant was charged with misdemeanor for selling a book entitled “ The Confessional "Unmasked ; showing the depravity of the Burnish Priesthood, the iniquity of the Confessional and the questions put to females in Confession.” Cookbüen, C. J., wilting the opinion sustaining the charge, says: *“*The very reason why this work is put forward to expose the practices of the Boman Catholic Confessional is the tendency of questions, involving practices and propensities of a certain description, to do mischief in the minds of those to whom such questions are addressed, by suggesting thoughts and desires which otherwise would not have occurred to their minds If that be the case between the priest and the person confessing, it manifestly must equally be. so when the whole is put into tho shape of a series of paragraphs, one following upon another, each involving some impure practices, some of them of the most filthy, disgusting and unnatural description it is possible to imagine. * * * We have it, therefore, that the publication itself is a breach of the law.” It would seem to be impossible to distinguish that case from the one at bar.

In *Steele*v. *Brannan*(L. R. [7 Com. PL] 231) the question was involved as to the defendant’s guilt for having dealt in printed matter purporting to be extracts from works of Boman Catholic divines and casuists on the subject of the confessional. A conviction of misdemeanor having been had before a police magistrate the case came on review to the Common Pleas. The appellant’s counsel asked: “ What effectual remedy is there in the hands of persons wishing to suppress a system which they conceive to be pernicious, except to expose the tendency of such a system ? ” To this Bovill, C. J., *487answered: “ There is no doubt that all matters of importance to society may be made the subject of full and free discussion, but while the liberty of such discussion is preserved, it must not be allowed to run into obscenity and to be conducted in a manner which tends to corrupt the public morals. The probable effect of the publication of this book being prejudicial to public morality and decency, the appellant must be taken to have intended the natural consequences of such publication, even though the book were published with the object referred to by counsel. * ** **Discussions offensive to public decency and of a depraving tendency are not privileged.”

In *United States v. Bennett*(16 Blatchford, 338), Judge Blatohford refers with approval to the language of Judge Clark in charging the jury in the *Haywood*case as follows : *“A book is indecent which is*tmbecommg, immodest, *unfit to be seen.*A book which is obscene, as I have said to you before, or lewd, or lascivious, or indecent, in whole or in part, or in its general scope or tendency, in its plates or pictures, or in its reading matter, falls within the scope of the prohibition ■ of the statute.”

Judge Daniels, in *People*v. *Muller*(32 Hun, 209), says: “ The statute has not particularly described whá,t, within its intent and purpose, should be considered obsene or indecent. But as these words are words of well known significance, it must have been intended by the legislature, in the enactment of this law, to use them in their popular sense and understanding. * * * And as the statute has given this general definition of the character of the acts constituting the offense, it must necessarily liave been designed that the drawing, joicture, photograph or writing should be exhibited to and observed by the jury for them to determine as a matter of fact, in the exercise of their good sense and judgment, whether or not they were obscene and indecent. "x" * * The question in all of these cases must be, what is the impression produced upon the minds by perusing or observing the writing or picture referred to in the indictment, and one person is as competent to determine that as another.”

*488The only question presented by the demurrer in this case is whether the writing in question is, as matter of law, *not*indecent. In all the cases where the question has arisen it was held that the writing or picture must bo submitted to the jury to decide whether in fact it was indecent or not; that the words used in the statute are in themselves descriptive, to be taken and understood in the popular sense and that upon such a question the opinion of one person is just as good as that of another. This court is asked to hold, as matter of law, that the writing, upon reading and inspection, is not an indecent publication. That, as it seems to me, is a question of fact which must be determined by the jury, under propér instructions. The character of the writing, its tendency and effect, is a question that one person is as competent to decide as another, and hence it cannot be said, as matter of law, that it is not within the prohibition of the statute.

In *United States*v. *Bebout*(28 Fed. Pep. 522) the defendant was indicted under a Federal statute against “ publications of an indecent charactei-.” The trial judge in charging the jury defined thé term “indecent” as something “not decent; unfit to be seen or heard.” He then said: “ There is a test which has often been applied and approved of by the courts in this class of cases to determine whether the publication is obscene or indecent within the meaning of the statute before referred to. It is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of this sort may fall. Under these definitions, whether the matter set out in the indictment was obscene or indecent, is a question of fact for you to determine.”

I am, therefore, unable to concur in the views of the majority. It is true that my brethren have considered it necessary to denounce the publication in question upon almost every conceivable ground of impropriety, except the ground which presents the only question before the court, that it is an indecent publication within the statute. The paper has been characterized by very harsh names that do not, in the *489least, solve the only question presented by the appeal. Having arrived at the conclusion that it is not an indecent publication,-it is of very little consequence what else it maybe. The important feature of the case is that, notwithstanding the conceded iniquity found in the writing, the defendant, by what appears to me to be a very strained and artificial construction of his act, is allowed to escape punishment; nor is the situation helped very much by the suggestion ■ that the paper is a criminal libel and that the public prosecutor should have indicted the defendant for that crime instead of the one charged in the indictment. The defendant is not injured very much by the suggestion that he has published a libel instead of an indecent paper; since we all know that he may now be protected by the Statute of Limitations from any,prosecution on such a charge.

The judgment should be reversed and the demurrer overruled.

Edward T. Baetlett, Yann, Hisoook and Chase, JJ., concur with per curiam opinion, and Cullen, Oh. J.; Haight, J., concurs with O’Brien, J.

Judgment affirmed.