The defendant corporation appealed upon the ground that the possession of the book with intent to sell and show the same did not offend against the provisions of the law. The individual defendant appeals upon the same ground and also upon the ground that he was not a party to the offense charged.
Considering first the appeal of the defendant Brainard, it is sought to sustain his conviction under section 164 of the Penal Law. The defendant Brainard was the president of Harper & Brothers, which corporation confessedly had possession of the book and offered the same for sale. The evidence shows that when the book was presented for sale the same was referred to a literary conference, regularly composed of certain officers and employees of the corporation. The president of the corporation was not a member of that conference. The book was considered and passed upon by the literary conference, and if it were deemed a proper book for sale and the sale of it promised financial success, the book was accepted and offered for sale. This book received the unanimous approval of this literary conference, but from the evidence it appears that the defendant Brainard had no knowledge of the fact that
It will be noted in the first place that the information did not charge that this book was published by the said corporation, but only that the defendant had possession of, “ with intent to sell and show the same.” Section 164 would seem to create criminal liability in the manager of a publishing firm which “ publishes ” a book within the contemplation of the section, and it is provided in that section that the defendant may show in his defense that the matter complained of “ was published ” without his knowledge or fault and against his wishes, by another who had no authority from him to make the publication and whose act was disavowed by him so soon as known. The section seems to be aimed at those guilty of the publication of the book or article contemplated thereby, and it clearly does not include those who merely have possession of the book with intent to sell and show the same. Again, this section is included in article 14 of the Penal Law, entitled
That the defendant Brainard, whether as president or manager of the defendant corporation, is not liable for the criminal acts of the corporation committed without his knowledge or privity, would seem to be held in People v. Clark (8 N. Y. Crim. Rep. 179) and in People ex rel. Carvalho v. Warden of City Prison (144 App. Div. 24; affd., 212 N. Y. 612). In Wahlheimer v. Hardenbergh (217 N. Y. 264) the Court of Appeals held that the general manager of an unincorporated association was not liable civilly for damages for the publication of a libel, which publication was made without his knowledge or acquiescence. In People v. Taylor (192 N. Y. 398) the superintendent of a corporation was held not to be liable criminally for the employment - by a foreman of a child under sixteen years of age contrary to the statute. It was assumed that the owner was liable, but that the superintendent was not liable unless he had knowledge of or acquiesced in the employment. In People ex rel. Price v. Sheffield Farms Co. (225 N. Y. 25) “ the corporation ” was held liable criminally for the employment by a subordinate of a child under the lawful age. This contention cannot be sustained unless we are prepared to hold that the manager of a corporation is criminally liable for every criminal act committed by any subordinate officer of the corporation in connection with his duties in behalf of the corporation. I do not understand that any authority has asserted any such broad proposition, and such a proposition of law should only be held upon a statute clearly expressing such an intent. Moreover, an examination of the other sections of article 106, entitled “Indecency,” in which section 1141 is found, would indicate the contrary intent. By section 1140a (as added by Laws of 1909, chap. 279), the section immediately preceding the section here construed, it is provided that any person who “ as owner, manager, director or agent,” or in any other capacity, prepares, advertises, gives, presents or participates
The remaining question is as to the liability of the corporation for the publication of the book complained of. Section 1141 of the Penal Law makes it criminal for a person to have in his possession with intent to sell, lend or give away, or to show “ any obscene, lewd, lascivious, filthy, indecent or disgusting book,” and such is the information upon which these defendants have been convicted. This section is similar to section 317 of the Penal Code. That section was construed by the Court of Appeals in People v. Eastman (188 N. Y. 478), in which it is said: “ 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.”
I venture that no one can read this book and truthfully
Clarke, P. J., and Page, J., concur; Dowling, J., dissents.