Section 1141 of the Penal Law provides that a person who sells any obscene, lewd, lascivious, indecent or disgusting book is guilty of a misdemeanor.
On the 28th day of November, 1917, the defendant filed an information in the Magistrates Court of the city of New York charging the plaintiff with the violation of this section in having sold a book entitled "Mademoiselle de Maupin" by Theophile Gautier. The accused, having waived examination before the magistrate, was held for the Special Sessions where he was thereafter tried and found not guilty. He thereupon commenced this action charging this defendant with having maliciously prosecuted him, in that it caused his arrest without any *Page 8 probable cause to believe him guilty of having sold an indecent book; in other words, charging the defendant with having no reasonable grounds to believe "Mademoiselle de Maupin" an indecent publication.
There have been two trials of this action. On the first trial the judge charged the jury as a matter of law that there was no probable cause to believe this book indecent.
On appeal this was reversed on the ground that probable cause in this case was a question of fact for the jury and not for the court. (Halsey v. N.Y. Society for the Suppression of Vice,191 App. Div. 245.)
The question of probable cause, when there is no conflict in the evidence, no disputed facts, nor any doubt upon the evidence or inferences to be drawn from it, is one of law for the court, and not of fact for the jury. (Heyne v. Blair, 62 N.Y. 19;Hazzard v. Flury, 120 N.Y. 223; Wass v. Stephens,128 N.Y. 123.)
In Carl v. Ayers (53 N.Y. 14, 17) the court, speaking through ANDREWS, J., said: "A person making a criminal accusation may act upon appearances, and if the apparent facts are such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged, he will be justified, although it turns out that he was deceived and that the party accused was innocent. Public policy requires that a person shall be protected, who in good faith and upon reasonable grounds causes an arrest upon a criminal charge, and the law will not subject him to liability therefor. But a groundless suspicion, unwarranted by the conduct of the accused, or by facts known to the accuser, when the accusation is made, will not exempt the latter from liability to an innocent person for damages for causing his arrest."
When facts and circumstances are undisputed, probable cause is a question of law for the court which it is error to submit to the jury. (Brown v. Selfridge, *Page 9 224 U.S. 189, 193; Anderson v. How, 116 N.Y. 336; Burt v.Smith, 181 N.Y. 1; Rawson v. Leggett, 184 N.Y. 504.)
In Besson v. Southard (10 N.Y. 236, 240) we find the law stated as follows: "If the facts which are adduced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should go to the jury, with proper instructions as to the law. But where there is no dispute about facts, it is the duty of the court, on the trial, to apply the law to them."
As an instance where the court found on the facts that there was probable cause and dismissed the malicious prosecution complaint see Murray v. Long (1 Wend. 140). So also, inBurlingame v. Burlingame (8 Cowen's Rep. 141) where concededly there was a mistake in making the arrest. See Driggs v. Burton (44 Vt. 124); Gilbertson v. Fuller (40 Minn. 413) ; Bell v. Atlantic C.R.R. Co. (58 N.J. Law, 227); Stone v. Crocker (24 Pick. 81); Bell v. Keeplers (37 Kans. 64).
In Blachford v. Dod (2 B. Ad. 179) the facts were these. An attorney was indicted for sending a threatening letter. Being acquitted he brought suit for malicious prosecution and was nonsuited. The court said: "Here the question of probable cause depends on a document coming from the plaintiff himself, viz., the letter sent and written by him to the defendant; and the only question is, whether we are justified in point of law in giving to that letter the construction that it contained a threat of charging the defendants with endeavoring to obtain goods under false pretenses. * * * I concur, therefore, in thinking that the letter, independently of the summons, showed a reasonable and probable cause." (See page 187.)
The construction of the letter and its meaning and whether from its contents there was probable cause was held to be a question of law for the court. *Page 10
"It was for the judge to construe the written instrument."
If it were always for a jury to determine what reasonable men would do on undisputed facts, there would never be a question of law for the court — the rule would be meaningless.
It was for the trial court and it is now for us to say whether or not, as a matter of law, the defendant had probable cause to believe the plaintiff guilty of selling an obscene book.
At the very outset a marked distinction must be drawn. It cannot be too strongly emphasized that we are not determining whether "Mademoiselle de Maupin" be an indecent book. All we are called upon to determine is whether or not, recognizing the latitude afforded all works of literature and of art, and that tastes may differ, a reasonable, cautious and prudent man would be justified in believing that this publication was obscene and lewd, not in certain passages, but in its main purpose and construction.
When the plaintiff was charged with having violated section 1141 of the Penal Law, that is, charged with a misdemeanor, it necessarily became a question of fact for the triers of fact, Special Sessions or jury, to determine his guilt — to determine whether the book sold was indecent and immoral. (People v.Eastman, 188 N.Y. 478, 481.)
In a criminal case the questions of fact are always for the jury. In People v. Muller (96 N.Y. 408, 411) Judge ANDREWS said: "The test of an obscene book was stated in Regina v.Hicklin (L.R. 3 Q.B. 360), 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."
The Special Sessions, as the triers of fact, have found the plaintiff not guilty, that is, have found that "Mademoiselle de Maupin" was not such an indecent *Page 11 book as had the tendency spoken of in the Muller case. When it came, however, to the trial of this action another question was presented, and that was whether the defendant here and the complainant in the criminal case had reason to believe that the book had this tendency, that is — whether reasonable men would have been justified in believing the book lascivious — corrupting to morals, even though in the mind of a jury they were mistaken.
This reasoning clearly shows that the jury, or triers of fact, in a criminal case have a different question to pass upon than those disposing of the malicious prosecution case. In the latter case when the facts are all conceded, and no different inferences are to be drawn from them, probable cause is a question of law for the court. In this case we have the book. The inferences to be drawn from it are all one way. Vice and lewdness are treated as virtues.
The book was submitted to the magistrate a week before the issuance of the warrant for the plaintiff's arrest. The plaintiff appeared, waived examination, and was held for trial before the Specia Sessions. (Schultz v. Greenwood Cemetery, 190 N.Y. 276. )
What is probable cause? We have quoted above what this court said about it in Carl v. Ayers (supra) and we cannot add to it. It is such a state of facts presented to the complainant as would incline or move reasonable minded men of the present day and of this generation to believe the accused guilty of the crime charged. Would reasonable, careful, prudent men acting with caution, and environed with the conditions of life as they exist to-day, and not in some past age, be justified in believing "Mademoiselle de Maupin" a filthy and indecent book and published for no useful purpose, but simply from a desire to cater to the lowest and most sensual part of human nature?
In order to justify my conclusion that the defendant had probable cause to believe this book such an one as *Page 12 mentioned in section 1141 of the Penal Law, it is not necessary to spread upon our pages all the indecent and lascivious part of this work. (People v. Eastman, supra, p. 481.) Some facts, however, may be mentioned to give point and direction to this inquiry. In the first place the Society for the Suppression of Vice was confronted with the fact that the publisher, whoever he was, does not put his name to the book.
The book consists of certain letters purported to be written, by a young man of twenty-two as a sort of a satire on virtue and in praise of the sensual passions, adultery and fornication. It counsels vice. He tells his friend of his love for certain women, describes them, and relates the scenes leading up to immoral practices and to intercourse. To have a mistress in the eyes of this young man is the first qualification of a gentleman, and adultery to him appears to be the most innocent thing in the world. He writes: "I deem it quite a simple matter that a young girl should prostitute herself."
No doubt many books of fine literature known as standard works have passages in them which may shock the moral sensibilities of some people of this day, but they appear as expressions of the times and not to my knowledge as in praise of vice and derision of virtue. Most works, wherever prostitution appears, condemn or confess it as a vice or admit its evil effects and influences. The purport of this book seems to be to impress upon the readers that vice and voluptuousness are natural to society, are not wrongs but proper practices to be indulged in by the young. (Tyomies Pub. Co. v. United States, 211 Fed. Rep. 385.)
Theophile Gautier published Mlle. De Maupin in 1835. The people of his time condemned it, and by reason of its lasciviousness and bad taste he was forever barred from the French Academy. He acquired a reputation as a writer, but it was not because of this book. The New International Encyclopedia has this to say about *Page 13 Gautier and his Mlle. De Maupin: "Theophile Gautier 1811-1872. Gautier's next book, Mlle. De Maupin (1835), a curious attempt at self-analysis, was a frank expression of Hedonism. Its art is fascinating, but it treats the fundamental postulates of morality with a contempt that closed the Academy to him for life."
In the Encyclopedia Britannica we read the following: "His first novel of any size, and in many respects his most remarkable work, was Mlle. De Maupin. Unfortunately this book while it establishes his literary reputation on an imperishable basis, wasunfitted by its subject, and in parts by its treatment, forgeneral perusal, and created even in France, a prejudice against its author which he was very far from really deserving." (Article by George Saintsbury.) (Italics mine.)
In the Encyclopedia Americana may be read: "Gautier's whole philosophy is a philosophy of paradox, his ideal of life hardly more than a picturesque viciousness. His besetting sin was a desire to say something clever and wicked to shock the Philistines (see Mlle. De Maupin). The Academy was forever closed to him."
When the people of France and Gautier's time condemned his book as being vicious and unfit for general perusal, are we going to say that the defendant in this case did not have probable cause to believe the same thing, when the translation was published in America by a publisher who was ashamed to put his name to it?
Many things have moved in the past century, and with the teachings of church, synagogue and college, we, at least, have the right to expect that the general tone of morality in America in 1922 is equal to that of France in 1835.
It may be true that Gautier's style is fascinating and his imagination rich, but neither style, imagination or learning can create a privileged class, or permit obscenity because it is dressed up in a fashion difficult to imitate or acquire. *Page 14
American literature has been fairly clean. That the policy of this state is to keep it so is indicated by section 1141 of the Penal Law. The legislature has declared in this section that no obscene, lewd, lascivious or disgusting book shall be sold. Language could not be plainer.
If the things said by Gautier in this book of Mlle. De Maupin were stated openly and frankly in the language of the street, there would be no doubt in the minds of anybody, I take it, that the work would be lewd, vicious and indecent. The fact that the disgusting details are served up in a polished style with exquisite settings and perfumed words makes it all the more dangerous and insidious and none the less obscene and lascivious.
Gautier may have a reputation as a writer, but his reputation does not create a license for the American market.
Oscar Wilde had a great reputation for style, but went to jail just the same. Literary ability is no excuse for degeneracy.
Sufficient to say that a reading of this book convinces me that as a matter of law the Society for the Suppression of Vice had probable cause to believe the defendant, plaintiff, guilty of violating section 1141 of the Penal Law in selling this book and that the complaint in this case should have been dismissed.
HISCOCK, Ch. J., CARDOZO, POUND and McLAUGHLIN, JJ., concur with ANDREWS, J.; CRANE, J., reads dissenting opinion in which HOGAN, J., concurs.
Judgment affirmed. *Page 15