
    The People of the State of New York, Respondent, v. Louis Finkelstein, Joseph Kleinberg, Nathan Goldstein, Louis Schaeffer and Herman H. Schenkman, Appellants.
    Argued January 12, 1961;
    decided March 30, 1961.
    
      
      Emanuel Bedfield for appellants.
    I. Section 1141 of the Penal Law on its face is unconstitutional. (Smith v. California, 361 U. S. 147; People v. Shapiro, 6 A D 2d 271; People v. Shingles, 281 App. Div. 647.) II. The statute cannot be construed by this court to supply what the Legislature deliberately omitted. (Winters v. New York, 333 U. S. 507; Poulos v. New Hampshire, 345 U. S. 395; Wait v. Van Allen, 22 N. Y. 319; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357; James v. Patten, 6 N. Y. 9; Betz v. Horr, 276 N. Y. 83; Town of Putnam Val. v. Slutsky, 283 N. Y. 334; Weed v. Tucker, 19 N. Y. 422; Hyatt v. Taylor, 42 N. Y. 258; Gillespie v. Zittlosen, 60 N. Y. 449; Matter of Hamlin, 226 N. Y. 407; Wiley v. Solvay Process Co., 215 N. Y. 584.) III. Nor may the statute now be so construed as to render these defendants guilty. (Winters v. New York, 333 U. S. 507; Lanzetta v. New Jersey, 306 U. S. 451; People v. Engel, 7 N Y 2d 1002.) IV. Actual knowledge by appellants must be established. V. The imputation of knowledge to these defendants by the court is a denial of due process. (Roth v. United States, 354 U. S. 476; Wieman v. Updegraff, 344 U. S. 183; Bailey v. Alabama, 219 U. S. 219; Western & Atlantic R. R. Co. v. Henderson, 279 U. S. 639; Adler v. Board of Educ., 342 U. S. 485 ; People v. Richmond County News, 11 A D 2d 799.) VI. There is no proof that appellants knew that the books were obscene. (Roth v. United States, 354 U. S. 476; Halsey v. New York Soc. for Suppression of Vice, 234 N. Y. 1.) VII. Section 1141 is vague and unconstitutional. (Dreiser v. Lane Co., 183 App. Div. 773; United States v. One Book Entitled Ulysses, 72 F. 2d 705; Parmelee v. United States, 113 P. 2d 729; Hannegan v. Esquire, 327 U. S. 146; Chaplinsky v. New Hampshire, 315 U. S. 568; De Jonge v. Oregon, 299 U. S. 353.) VIII. The publications are not “obscene”. (Sunshine Book Co. v. Summerfield, 355 U. S. 372; Times Film Corp. v. Chicago, 355 U. S. 35; One, Inc., v. Olesen, 355 U. S. 371.) IX. As to Pinkelstein there was no proof of ownership.
    
      Frank S. Hogan, District Attorney (Peter J. O’Connor and Bichard G. Denzer of counsel), for respondent.
    I. Defendants’ guilt was established beyond a reasonable doubt. (People v. Pina, 270 App. Div. 404, 296 N. Y. 669; People v. Cuozzo, 292 N. Y. 85; People v. Roach, 215 N. Y. 592; People v. Brasch, 193 N. Y. 46; People v. Deacons, 109 N. Y. 374; People v. Louis, 
      286 App. Div. 792, 1 N Y 2d 137; People v. Joyce, 233 N. Y. 61; Roth v. United States, 354 U. S. 476; People v. Richmond County News, 11 A D 2d 799; Smith v. California, 361 U. S. 147.) II. Subdivision. 1 of section 1141 of the Penal Law is constitutional. (Smith v. California, 361 U. S. 147; Morissette v. United States, 342 U. S. 246; People v. Katz, 290 N. Y. 361; People v. Shapiro, 6 A D 2d 271; People v. Richmond County News, 11 A D 2d 799; Matter of Lyons v. Goldstein, 290 N. Y. 19; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; Lanzetta v. New Jersey, 306 U. S. 451; People v. Brainard, 192 App. Div. 816; People v. Brooklyn News Co., 12 Misc 2d 768; People v. Engel, 7 N Y 2d 1002; People v. Pesky, 254 N. Y. 373; Winters v. New York, 333 U. S. 507.)
   Burke, J.

Defendants, in a consolidated appeal from unanimously affirmed convictions of violations of section 1141 of the Penal Law, contend, inter alia, that the statute is violative of the Constitution of the United States in that it does not expressly require scienter. We do not agree.

Section 1141 provides in part that “A person who sells * * * or has in his possession with intent to sell * * * any obscene * * * book # * * [i]s guilty of a misdemeanor”. It is our- firm opinion, on this our first opportunity to construe the statute, in this respect, that the definition of the crime is instinct with the idea of scienter.

In Smith v. California (361 U. S. 147), the United States Supreme Court declared unconstitutional a Los Angeles City ordinance which proscribed, and was construed to impose strict liability for, mere possession of obscene prints, regardless of the offender’s awareness of the contents. The New York proscription, on the other hand, neither expressly, nor by our construction here, dispenses with this vital element of scienter, and, therefore, in no way impinges upon the traditional freedom guarantees of speech and the press (Roth v. United States, 354 U. S. 476).

Although our statute might possibly be interpreted to exclude scienter, we feel, inter alia, guided by the strong constitutional presumption attending legislative enactments (Wiggins v. Town of Somers, 4 N Y 2d 215, 218; Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413, 415) that the statute was not intended to unreasonably restrict or inhibit our inalienable “liberty” protected by due process (see Smith v. California, supra). A reading of the statute as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised, and a mere omission of the word “ scienter ” need not be construed as an attempt to eliminate that common-law element of the crime. (See Morissette v. United States, 342 U. S. 246; People v. Katz, 290 N. Y. 361.)

In any event, the statute is at least susceptible of either interpretation, and we are, therefore, clearly obliged by statute and decisional law to embrace that which will preserve its validity. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 150; Matter of Coates, 9 N Y 2d 242; Matthews v. Matthews, 240 N. Y. 28, 34—35; Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. 270, 275; Matter of Lyons v. Goldstein, 290 N. Y. 19, 23; People ex rel. Morriale v. Branham, 291 N. Y. 312, 317.) “ No statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law.” (People ex rel. Simpson v. Wells, 181 N. Y. 252, 257; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44.) A conviction, therefore, cannot be upheld without proof of the element in question which we find required by section 1141. Such a holding is not extraordinary. The United States Supreme Court has pointed out that it has affirmed a conviction under the stated limitation of meaning ”. (Winters v. New York, 333 U. S. 507, 510.) In the view of that court: ‘ ‘ The interpretation by the Court of Appeals puts these words in the statute as definitely as if it had been so amended by the legislature.” (Winters v. New York, supra, p. 514; emphasis supplied.)

At the time of the prosecution of the violations herein, the prevailing precedent (People v. Shapiro, 6 A D 2d 271 [2d Dept.]), however, since soundly repudiated (People v. Richmond County News, 11 A D 2d 799 [2d Dept.]; see, also, People v. Douglas, 12 A D 2d 194; People v. Schenkman, 12 A D 2d 457), declared that scienter was not an element of the crime. Defendants, perhaps believing because of Shapiro that their knowledge was irrelevant, did not take the stand or offer proof in this regard. Although they can be charged “with knowledge of the scope of subsequent interpretation ” (Winters v. New York, supra, p. 514), we still feel that new trials are warranted by the circumstances and in the interests of justice, so that, although the People have the burden of proof, defendants may have an opportunity to testify or offer proof, if they desire, in regard to the presence of salacious literature in their possession for sale. However, we find it unnecessary to dismiss the informations which are phrased in statutory language. They are sufficient, especially in light of this our initial interpretation of section 1141, to apprise the defendants of the true nature of the crime.

Accordingly, the judgments should be reversed and new trials ordered.

Vah Voorhis, J. (dissenting).

On this appeal appellants challenge the constitutionality of section 1141 of the Penal Law in view of the recent decision by the Supreme Court of the United States in Smith v. California (361 U. S. 147). Sub division 1 of this section renders guilty of a misdemeanor any person “who sells, lends, gives away, distributes, shows or transmutes, or offers to sell, lend, give away, distribute, show or transmute, or has in his possession with intent to sell, lend, distribute, give away, show or transmute, or advertise in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book”.

Smith v. California (supra) held an ordinance of the City of Los Angeles to be unconstitutional which provided that it was unlawful “ for any person to have in his possession any obscene or indecent writing, [or] book * * * [i]n any place of business where * * * books * * * are sold or kept for sale ”. This ordinance had been construed by the California courts as not requiring knowledge of the obscene nature of the book on the part of the vendor. The Supreme Court held that if every bookseller were placed under an obligation • to make himself aware of the contents of every book in his shop, it would restrict the public’s access to reading matter to such a degree as to constitute an infringement of the constitutional guarantee of freedom of the press.

For the same reason it seems to us that Smith v. California (supra) renders unconstitutional subdivision 1 of section 1141 of

the Penal Law. The language is identical in substance with that of the ordinance of the City of Los Angeles which was held to be unconstitutional. As recently as 1958 the Appellate Division, Second Department, held in People v. Shapiro (6 A D 2d 271) that knowledge by the bookseller of the obscene quality of books sold or on sale was not required to convict under subdivision 1 of section 1141 of the Penal Law. The opinion therein by Presiding Justice Nolait, speaking for a unanimous court, traces the codification and subsequent history of this statute from the time of its enactment in 1868. Many decisions are cited. The conclusion reached is inescapable that knowledge of the contents of obscene books by the bookseller was purposely omitted by the Legislature as an ingredient of the crime so as to avoid what was thought to have been a facile method of evasion of this law. It is impossible to believe that the Second Department in a memorandum decision in People v. Richmond County News (11 A D 2d 799) intended to overrule the 10 learned pages of opinion which had demonstrated so effectively less than two years earlier in People v. Shapiro (supra) that the Legislature deliberately omitted scienter as an element in the crime when the statute was enacted. Since the decision in Smith v. California (supra) the First and Third Departments have declared that scienter is not an element in the crime (People v. Schenkman, 12 A D 2d 457; People v. Douglas, 12 A D 2d 194), but in each instance the information was held to be defective in not charging that the books were sold or kept for sale with knowledge that they were obscene. It is not easy to understand by what reasoning scienter is to be read into the statute by implication in order to save its constitutionality, but not into the informations which were drawn in the same language. The same words can hardly be infused with opposite meanings when used in informations to those which they bear when contained in the statute. The sound reasoning which prompted the decisions that the informations failed to charge scienter should have resulted, it seems to us, in holding that by using the same language the statute did not include scienter either.

Statutes sometimes receive heroic treatment at the hands of courts in construing them so as to sustain their constitutionality, but that is. a practice which is necessarily more limited in criminal than in civil actions where the effect is to redefine the nature of a crime ex post facto. The realization by the courts which have been faced with this question since Smith v. California (supra) that informations were defective which did not charge knowledge of obscenity suggests that judicial power is exceeded by reading into a statute drawn in similar language a requirement of scienter which is not there. The majority opinion of this court in the present case tacitly recognizes this circumstance by granting new trials to enable appellants to take the witness stand for the purpose of testifying to lack of knowledge on their part of the character of these books in their possession for sale. If the informations are construed as actually charging scienter, then new trials would not be necessary since appellants would already be on notice that scienter was charged against them. If the language of these informations (which is the language of the statute) includes inferentially a charge that appellants had such guilty knowledge, then their convictions should be affirmed. The granting of new trials is an implied recognition that neither by the language of the statute nor of the informations were appellants informed that knowledge on their part was an element in the crime charged. They are to be given a new trial, as we read the record and the majority opinion, essentially for the reason that the statute is being amended rather than interpreted, entailing a felt necessity to afford an opportunity for another trial after the amendment by the court has become effective.

As the statute reads and as it had been authoritatively construed, there must have appeared to appellants to have been no object in their taking the witness stand. The books were in evidence, and spoke for themselves; lack of knowledge of their contents had been held to be no defense. All apparently relevant facts' were undisputed. Only a question of law appeared to be involved. Appellants had no reason to believe that knowledge or lack of knowledge of the obscene nature of this reading material had any bearing on the case. They asserted that subdivision 1 of section 1141 was unconstitutional in view of the authoritative position taken by the United States Supreme Court in Smith v. California (supra). That contention seems to us to be unanswerable.

The judgments appealed from should be reversed and the informations dismissed.

Froessel, J. (dissenting).

I agree entirely with Judge Burke’s construction of the statute, but deem it unnecessary to remand for a new trial. The informations follow the language of the statute so far as pertinent. Defendants moved to dismiss the informations at the end of the People’s case upon the ground that, even if the court should find that the books were obscene, the defendants' could not be convicted for the reason that the People failed to establish scienter on their part, relying on Smith v. California (361 U. S. 147). The court below, after reviewing the evidence, found “as a fact, that the defendants had knowledge of the contents of the books ”, and there was sufficient evidence to support that finding. I would affirm.

Chief Judge Desmond and Judges Dye and Fuld concur with Judge Burke; Judge Van Voorhis dissents and votes to reverse and to dismiss the informations upon the ground that section 1141 of the Penal Law is unconstitutional in an opinion in which Judge Foster concurs; Judge Froessel dissents and votes to affirm in a memorandum.

Judgments reversed and new trials ordered.  