The information charged that on October 7, 1929, in the county of New York, the defendant unlaw*205fully possessed a book called “ Hands Around ” with intent to sell and show the same, and which was a lewd, lascivious, indecent, obscene and disgusting book.
Section 1341 of the Penal Law reads, in part, as follows: “ A person who sells * * * any obscene, lewd, lascivious, filthy, indecent or disgusting book * * * is guilty of a misdemeanor * *
The facts in the case are uncontradicted.
The book of the play condemned at Special Sessions by a divided court is called in its original version in German “ Reigen ” and we may take judicial notice that it had an almost world-wide acceptance among litterateurs as of literary merit. The episodes related by the characters less deftly touched would be of a vulgar tone because of the subject and could be, if written in bawdy phrases, classed as too realistic for common reading. But nowhere is there any word in the translation which has a lewd or lascivious connotation. The appeal to passion or lechery is wholly lacking. While the trial court is the judge of the facts, it may not hold as obscene that which in common speech is not within that category.
The proof shows, too, that this publication has been on sale in the book departments of department stores, bookshops and .other merchandising stores in which part of the retail business is the sale of books. It has also been advertised in the daily prints in the city. As a play in German, the work has been produced in many large European Continental cities and has been extant for at least ten years there.
We reversed a conviction for the publication of a book known as “ Madeleine,” which was the autobiography of a prostitute, and seems in its content more nearly approaching lewd and lascivious descriptions than anything found here. (People v. Brainard, 192 App. Div. 816.)
A receiver was directed by a former justice of this court to sell Fielding’s novel, “ Tom Jones,” the “ Works of Rabelais ” and Ovid’s “ Art of Love ” and other works of an amatory nature, whose terms and descriptions are much more likely to stimulate sexual impulses than anything in the book now here. (Matter of Worthington Co., 62 N. Y. St. Repr. 116.)
Recently in the Federal court, in United States v. Dennett (39 F. [2d] 564), it was pointed out that a similar statute enacted by the Congress, designed to bar from the mails obscene publications, was never thought to bar everything which might stimulate sex impulses. It was said that much chaste poetry and fiction, as well as many useful medical works, would be under the ban if such were the rule. Such a statute must be construed reasonably, with a view to *206attaining the general objects at which the public policy of the State is aimed, to wit, a prohibition of that which is obscene, lascivious or lewd.
We think it is no part of the duty of courts to exercise a censorship over literary productions.
We conclude that the judgment of conviction should be reversed and the information dismissed.
Sherman, J., concurs.
Judgment affirmed.