I concur in the reversal of the judgment of conviction of the defendant Brainard, upon the ground that he was not responsible for the publication of the book in question, .knew nothing of its acceptance, had no connection with its issue, did not pass judgment upon its suitability, and had no knowledge whatever of its character. He had not even heard of the work until this prosecution was instituted. No duty devolved upon him as president of the defendant corporation, Harper & Brothers, the neglect or violation of which led to the publication of the book. I do not see how liability, therefore, can be in any way charged to him.
I dissent from the reversal of the judgment of conviction of the defendant Harper & Brothers. The book in question has been submitted to the triers of the fact, the trial justices, who have found that it comes within the prohibition of the statute. I agree with the conclusion reached by them.
Penal Law, section 1141, under which the defendant was convicted, is contained in article 106, entitled “ Indecency; ” and so far as applicable, reads: “ 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; * * * Is guilty of a misdemeanor,” etc.
The statute “ is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire.” (People v. Eastman, 188 N. Y. 478, 480.) Its object is “ to protect public morals, *823especially of that class of the community whose character is not so completely formed as to be proof against the lewd effects of the pictures, photographs and publications prohibited.” (People v. Muller, 32 Hun, 209, 212, 213; affd., 96 N. Y. 408.)
The test as to what is an obscene publication is: “ 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.” (People v. Muller, 96 N. Y. 408, 411; Regina v. Hicklin, L. R. 3 Q. B. 360; 11 Cox C. C. 19.) “ What is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity and chastity of society, extending to the family, made up of men and women, young boys and girls — the family, which is the common nursery of mankind, the foundation rock upon which the State reposes? ” (United States v. Harmon, 45 Fed. Rep. 414; revd. on other grounds, 50 id. 921.) As was said by Cockburn, Ch. J. (11 Cox C. C. 19), the ‘test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands the publication may fall.
This book purports to be the autobiography of a common prostitute. It is filled with the revolting details of the author’s Ufe in various houses of ill-fame in different sections of this country. It sets forth at length the physical and financial difficulties attendant upon her chosen means of livelihood, as well as her periods of successful operations. Her continued periods of drunkenness, her diseased conditions, her cynical disregard for decency, are all narrated. The book reveals no purpose to act as a warning to others against embarking on a similar career. It is simply an effort to exploit prurient curiosity. If houses of prostitution and resorts of vice are condemned by law and every possible effort made to suppress them for the good of the community, I see no reason why the vicious and filthy incidents of the lives of the inmates of such illicit resorts should be allowed to be spread before the public, young and old, in the printed page. That the subject-matter of this book is vulgar and degrading does not necessarily *824destroy its corrupting effect on the minds and morals of those who may read it. It is not necessary that a publication should be of a high order of literary merit or depict pleasant episodes to make it obscene. This book is suggestive throughout. It offends decency and good morals. In my opinion it completely meets the description of the books forbidden by the statute and I think the conviction of the defendant Harper & Brothers was right and should be affirmed.
Judgments reversed and information dismissed. Settle orders on notice.