I dissent on the ground that the statute, as construed by the court, is so vague and indefinite as to permit punishment of the fair use of freedom of speech. (Stromberg v. California,283 U.S. 359.) Though statutes directed against "obscenity" and "indecency" are not too vague when limited by judicial definition, they may be too vague when not so limited. (SeeMcJunkins v. State, 10 Ind. 140; Jennings v. State,16 Ind. 335.) It is the function of the Legislature to define the kind of conduct which is harmful from the standpoint of public order or morality and should be prohibited. Then the question whether the conduct of a defendant falls within that definition may be one of fact. The morality of the community does not, however, become the standard of permissible conduct until the Legislature has embodied its conception of that morality in a regulatory statute.
The judgment should be reversed.
LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur with LOUGHRAN, J.; LEHMAN, Ch. J., dissents in opinion.
Judgment affirmed. [See 294 N.Y. 979.] *Page 554