PEOPLE v. PESKY, 254 N.Y. 373 (1930)

173 N.E. 227

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PHILLIP PESKY, Appellant.

Court of Appeals of the State of New York.Argued October 10, 1930
Decided October 24, 1930

Appeal from the Supreme Court, Appellate Division, First Department.

K. Henry Rosenberg for appellant.

Morris L. Ernst, amicus curiae.
Thomas C.T. Crain, District Attorney (John C. McDermott of counsel), for respondent.

Per Curiam.

This court is a court of review, restricted in cases of this order to a pronouncement of the law, and without power to act as a trier of the facts.

If those charged with the duty to pass judgment upon the facts might say not unreasonably that the book sold by the defendant was obscene, lewd or indecent beyond a reasonable doubt (Penal Law, § 1141), we are not at liberty to substitute our judgment for theirs, or to supersede

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their function as the spokesmen of the thought and sentiment of the community in applying to the book complained of the standard of propriety established by the statute.

A different question would be here if we could say as a matter of law that the writing is so innocuous as to forbid the submission of its quality to the triers of the facts. We cannot say that here.

The judgment should be affirmed.

CARDOZO, Ch. J., POUND, CRANE, O’BRIEN and HUBBS, JJ., concur; LEHMAN and KELLOGG, JJ., dissent.

Judgment affirmed.