Halsey v. New York Society for the Suppression of Vice

Philbin, J.: The plaintiff was arrested upon a complaint made by an agent of the defendant charging a violation of section 1141 of the Penal Law, in that he sold to said agent a book which was, in the language of the statute, obscene, lewd, lascivious, filthy indecent and disgusting. The plaintiff was tried and acquitted in the Court of Special Sessions and has brought this action for malicious prosecution. Plaintiff claimed the book was well recognized as a standard literary work which had been on the market for a number of years, sold by many of the leading booksellers throughout the country; that it was not indecent or obscene and that its sale violated no law. At the close of the plaintiff’s case the defendant made a [247] motion to dismiss the complaint on the ground that plaintiff had not shown want of probable cause, and the court reserved decision, stating that it appeared to him that the whole question of probable cause would be for him to determine. The defendant’s counsel said: “ Certainty, as far as the book is concerned, and when I come to show the other evidence, if there is no dispute as to that, that will be a question for you, too.” The court said it would hear the defense. There was no exception taken to the court’s reserving decision. At the close of the entire case the motion to dismiss the complaint was renewed upon the same grounds and upon its being denied exception was duty taken. I do not think the omission to take an exception as to the court’s reserving decision on the first motion to dismiss the complaint can be considered as equivalent to an admission that the whole question of probable cause was one for the court to determine. There was no decision and the defendant was, therefore, not called upon to take an exception. The court advisedly refrained from deciding until the defendant’s proof was submitted, for it might then appear that there was no dispute of fact nor as to the inferences to be drawn therefrom, in which event the question of probable cause would property be one for the court to determine. The court •correctly denied the second motion to dismiss the complaint, for there was a question of fact to be determined by the jury, but it did not then rule that as to whether there was probable cause was for it to decide, and that view was only definitely taken by the court when the charge was made. The court instructed the jury that there was no probable cause for the prosecution, u'pon the ground that in this community the book was considered a standard literary work and upon the further ground that its sale did not violate section 1141' of the Penal Law. To this ruling defendant excepted. Application made by counsel for defendant during the trial to read extracts from the book and to submit the book to the jury was denied and exception taken. The court'charged the jury as a matter of law that there was no probable cause for the prosecution of the plaintiff by the defendant. Defendant excepted." [248] We think this was error, since there was a question of fact for the jury to determine. Probable cause is always a question of law for the. court-where there is no conflict in the evidence, otherwise by instructing the jury as to what facts, if found, will establish a want of probable cause. (Burt v. Smith, 181 N. Y. 1.) Where different inferences and conclusions may be drawn from the evidence, the question is one for the jury. Whether the facts are proved or not belongs to the jury to decide, or, in other words, whether the circumstances alleged are true is a question of fact; but if true, whether they amount to probable cause is for the court. (Heyne v. Blair, 62 N. Y. 19; Dann v. Wormser, 38 App. Div. 460; Bulkeley v. Keteltas; 6 N. Y. 384, 387; Ball v. Rawles, 93 Cal. 222, 227.) In the case at bar it is no.t a question of whether the plaintiff was guilty of a crime, but whether from all the circumstances defendant was justified in believing plaintiff was guilty of a crime in offering the book for sale. (Anderson v. How, 116 N. Y. 336; Carl v. Ayers, 53 id. 14.) It was for the jury to say after an examination of the book itself which contention should be sustained; the plaintiff’s, that the book was not indecent and that there was no reasonable ground to believe it transgressed the law; or that of the defendant, that the book was such as to justify defendant’s agent, acting as a prudent and discreet man, in honestly believing its sale was forbidden by law. It follows that the refusal of the court to permit the book to be shown or extracts read to the jury was, likewise, error. As has already been said, whether the book was of such a nature as to" make its sale a violation of the Penal Law is not before us for decision. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event. Clarke, P. J., and Smith, J., concur; Dowling and Page, JJ., dissent.