Page:Trial of S.M. Landis.djvu/79



Opinion by, J. Jan. 22, 1870.

The reasons for a new trial in this case are numerous, but they may all be disposed of under a few heads. They relate:

.—To the exclusion of evidence tending to show the scientific correctness of the book complained of, and the fitness of such a publication for general information.

.—To an expression of opinion by the Judge as to the character of the book.

.—To errors in charging the jury as to what constituted an obscene libel, and as to what extent a publicatinpublication [sic] is protected as necessary for general information and conducive to the public welfare.

1. Physicians were called as experts to show the scientific correctness of the book and the necessity of such knowledge for general information.

I ruled at the trial that the book might be true and scientifically correct in its statements and descriptions, and yet be obscene; that its obscenity did not depend upon its truthfulness or falsity, but upon its tendency to inflame the passions and debauch society. The character of the book was a question purely tor the jury, in which they could not be aided by the testimony of experts. Obscenity is determined by the common sense and feelings of mankind, and not by the skill of the learned. It was therefore a question for the jury, to be determined by their examination of the publication, and not by the opinions of others respecting it. That which offends modesty, and is indecent and lewd, and tends to the creation of lascivious desires, is obscene. Of this the jury were as competent to judge as the most accomplished experts in medical science, whose familiarity with the subjects, treated of in the book might, perhaps, render them less susceptible to the emotions which would be excited in the general public by reading such a book. 2. Relative to the expression of opinion by the Judge as to the character of the book, it was held by the Supreme Court in Kilpatrick v. The Commonwealth. 7 Casey, 198, that a Judge may rightfully express his opinion respecting the evidence and it may sometimes be his duty to do it. yet not so as to withdraw it from the consideration and decision of the jury.

My own experience as a Judge has taught me that it is sometimes not only expedient but necessary to the proper administration of law and justice that a Judge should express his opinion on the evidence submitted to the jury. His greater familiarity with the rules of evidence, the weight of the testimony, and its application to its subject-matter of investigation, requires that he should do so; but he should always accompany it with the instruction, that the facts of the case are for their determination, under the evidence submitted to them.

In this case this instruction was repeated to the jury more than once. They were told that they were not to take my opinion of the book, but were to determine its character from their own examination of it. Again, they were instructed that it was for them to determine the character of the book. If in their judgment the book was fit and proper for publication, and such as should go into their families and be handed to their sons and daughters, and placed in boarding schools for the beneficial information of the young, and others, then it was their duty to acquit the defendant.

They were further instructed that if they had a doubt as to the obscenity of the book it was their duty to acquit the defendant.

This instruction left the whole question of the character of the publication to the jury. There was no controversy as to the publication of the book by the defendant, a s its publication was substantially, if not in terms, admitted by him.

3. The next alleged error relate to the charge of the court as to what constitutes an obscene libel, and to what extent a publication is protected as necessary for general information and conducive to the public welfare.

The jury were instructed that it did not matter whether the things published in the book were true, and in conformity with nature and the laws of our being or not. If to inflame improper and lewd passions, it was an obscene libel. That to justify a publication of the character of the book, they must be satisfied that the publication was made for a legitimate and useful purpose, and that it was not made from any motive of mere gain, or with a corrupt de sire to debauch society. That even scientific and medical publications containing illustrations exhibiting the human form, it wantonly exposed in the open markets, with a wanton and wicked desire to create a demand for them, and not to promote the good of society by placing them in proper hands for useful purposes, would, H tending to excite lewd desires, be held to be obscene libels.

That before a medical class, for the purpose of instruction, it might be necessary and proper, and consonant with decency and modesty, to expose the human body for