The times. [volume] (Richmond, Va.) 1890-1903, 1900-03-22
SAPHOTANALYZED.

Justice Furs1nan Gives His View and
Sends Case to Grand Jury.
NEW. YORK, March 20.-The applica-5
ton OF. Miss olga Nethersole and the 9TH n
er defendants in the "sapho' case for jury,
trial, instead Of a judge trial, was grant
ed to-day by Justice FursInan in the
criminal branch Of the Supreme Court,
VINO, in his opinion, says:
..Tbe present case presents exceptional
fea lures The papers disclose that the
play has been presented in various cites
Of the country without objection or sub
stantial criticism on the ground OF moral
ity. and for 4 period in New York without
police interference. It does not seem pos
sible that there can be any substantial
contradiction as to the facts. The play
itself and the manner of its production by
the defendants and the several actors TAX
ing art in it must necessarily be always
substantially the same, although it Is pos
sible that different differences may be
drawn by different minds from witness
ing it.
"All men do not regard the same play
or book, or the actual visible. conduct Oh
others, alike Some minds are so sensl-.
tive as to be shocked by the undraped
statue of the Venus de Milo, and regard
Lady Godva as shamefully indecent
tale, while others find little to condemn in
the lewd conversation and lascivious con-
duct of men and women whose lives are
given over to debauchery and vice. Inis
play is not to be condemned because it
may shock the constituencies of the former,
nor approved because it may crafty the
latter.
..The question to be tried is: Is the play
Il Nlrr1n
outrage the sense of public decency which
is common among educated, modest right
minded, fair-thinking men and women?'
Upon the determination of this quetion the
rights Of the defendants must depend.
The case is one that mas heretofore rarely
arisen. Large property interests are ne
cessarily involved The right OF the public
TO witness it as means of rational en-
joyment is involved. In short, SO many
things in which both the public and the
accused are interested are necessarily in
cluded, and to be effected by the final de-
csion of this question, that 1t presents
features entirely and beyond and of<much
greater Importance than those usually in
vo1ved in the trial of misdemeanor
TT seems to me, therefore, proper and
reasonable that this charge should be pre-
sented to grand jury, and, if an indict-
ment is found tried by the ordinary jury
of twelve men. These bodies are COM
posed CT men selected from the great mass
of citizens of the city and county of New
York, to perform their very important
duties because of their good citizenship
their high moral character, their intelli-
gence and their approved integrity. II
| such a body of such men are able to
draw the inference from the production of
| this play that it is an offense against
public decency, it should be condemned
and the defendants punished Zoe having
produced it; but if sucn men are able.
| on the other hand, to draw the inference
that the play is not indecent then the de-
PENDANTS should be discharged and the
! Play allowed to proceed:
:.In all criminal matters CT grave I'M
rortance 1t has always been and still is
! the policy of our law that the accused
shall be prosecuted by indictment and tried
! by a jury of his peers. It is true that
| the laws permit crimes of minor char
acter to be tried and decided by 2 Court OF
| Special Sessions without jury, and al
| though I have no doubt that the defend
ants would receive a fair trial. yet, mas
much as the charge in this case is OF SO
grave a character, the circumstances at
| tending it are so peculiar, and the inter-
| ests involved so important, think 1t rea-
| scnable that the case should be investi-
gated by men taken from various walks IN
| life, such as constitute juries in our
courts of record, and are, according to the
| theory of our law, best qualified to judge
as to what influences and conclusions
ought to be drawn from a given State Of
| facts "-Ra 1tirnOre Sum-