The defendants herein, at the close of the People’s case, have moved for a direction of acquittal and the dismissal of the indictment on the ground that the book “Jurgen” on the possession of which the indictment is based, is not an “obscene, lewd, lascivious, filthy, indecent or disgusting book” within the meaning and intent of section 1141 of the Penal Law, for the alleged violation of which the indictment has been found.
I have read and examined the book carefully. It is by Mr. James Branch Cabell, an author of repute and distinction. From the literary point of view its style may fairly be called brilliant. It is based on the mediæval legends of Jurgen and is a highly imaginative and fantastic tale, depicting the adventures of one who has been restored to his first youth but who, being attended by a shadow in the guise of the shadow of his old self, retains the experience and cynicism of age which frustrates a perfect fulfillment of his desire for renewed youth.
The adventures consist in wanderings through mediæval and mythological countries and a sojourn in Hell and Heaven. He encounters beings of mediæval folk-lore and from classical Mythology. The most that can be said against the book is that certain passages therein may be considered suggestive in a veiled and subtle way of immorality, but such suggestions are delicately conveyed and the whole atmosphere of the story is of such an unreal and supernatural nature that even these suggestions are free from the evils accompanying suggestiveness in more realistic works. In fact, it is doubtful if the book could be read or understood at all by more than a very limited number of readers.
In my opinion the book is one of unusual literary merit and contains nothing “obscene, lewd, lascivious, filthy, indecent or disgusting” within the meaning of the statute and the decisions of the courts of this state in similar cases. (See Halsey v. New York Society, 234 N. Y. 1; People v. Brainard, 192 App. Div. 116; St. Hubert Guild v. Quinn, 64 Misc. 336.)
The motion, therefore, is granted and the jury is advised to acquit the defendants.
STATUTES RELATING TO THE PUBLICATION,
SALE, ETC., OF OBSCENE
LITERATURE
NEW YORK STATUTES
Penal Law—Sections 1141 and 1143