Attorney General v. Book Named "Serenade." , 326 Mass. 324 ( 1950 )

326 Mass. 324 (1950) 94 N.E.2d 259

ATTORNEY GENERAL
vs.
THE BOOK NAMED "SERENADE."

Supreme Judicial Court of Massachusetts, Suffolk.

December 8, 1949. September 12, 1950.

Present: QUA, C.J., LUMMUS, RONAN, WILKINS, SPALDING, WILLIAMS, & COUNIHAN, JJ.

L.E. Ryan, (J.J. Bresnahan, Assistant Attorney General, & J.J. Kelleher with him,) for the petitioner.

A.E. Farmer of New York, (R.W. Meserve & J.B. Ullman with him,) for Alfred A. Knopf, Inc., and another.

SPALDING, J.

This is a petition in equity brought by the Attorney General under G.L. (Ter. Ed.) c. 272, §§ 28C-28G, as inserted by St. 1945, c. 278, § 1, seeking an adjudication that the novel "Serenade" by James M. Cain is obscene, indecent, or impure. It is conceded in the answer that the book was being sold and distributed in the Commonwealth. The judge made findings of fact and concluded that the book did not offend against the statute, and from a decree entered accordingly the Attorney General appealed. The evidence, which includes the book itself, is reported.

The guiding principles to be applied in determining whether a book is "obscene, indecent or impure" were fully discussed in the recent case of Commonwealth v. Isenstadt, 318 Mass. 543, and it is not necessary to repeat what was there said. Those principles are equally applicable in this proceeding in equity against the book. Attorney General v. "Forever Amber," 323 Mass. 302. The scope of review, however, in a case like the present is quite different from that which confronted us in the Isenstadt case. There we said, "The test is not what we ourselves think of the book, but what in our best judgment a trier of the facts might think of it without going beyond the bounds of honesty and reason" (page 556). The present appeal is governed by the principles obtaining in equity, and since the book itself is before us we must "make our own determination whether ... [it] is obscene, indecent, or impure under the statute." Attorney General v. "Forever Amber," 323 Mass. 302, 309.

A majority of the court are of opinion that the book in the case at bar, when read as a whole, does not contravene the statute. There are, to be sure, several sexual episodes in the book, but they are not portrayed in a manner that would have a "substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire." Commonwealth v. Isenstadt, 318 Mass. 543, 549-550. Nor do such incidents dominate or flavor the book. As the trial judge observed, they "are lost in the quickly moving tempo of the story." One of these incidents, it is true, occurs in circumstances that would shock and offend religious sensibilities. Whatever may be said against the portrayal of such an incident on the score of propriety or good taste, we cannot say that the book on that account violates the statute. Matters that are profane or sacrilegious are not within its scope.

The Attorney General took several exceptions to rulings on evidence but now presses only three of them. These arise from questions put by the respondents to their literary experts, Morrison, Thompson, and Davis, which asked them to give their opinions of the book from a literary point of view. It is not contended that this testimony in general is inadmissible (see § 28F), but rather it is urged that the questions were too broad and permitted the experts to give extended narratives of the contents of the book. Thus, it is argued, the best evidence rule was violated in that the accounts of the experts rather than the book itself were laid before the court. These exceptions are without merit. The questions themselves were not improper. If the answers included matters beyond the scope of the questions, the proper remedy was to ask that these portions be struck out — a course which was not pursued here. See Commonwealth v. Patalano, 254 Mass. 69, 74-75. But for a more fundamental reason these exceptions must be overruled. Our conclusion that the book is not obscene, indecent, or impure is based on a reading of the book itself without resort to the expert testimony.

Decree affirmed.

The Chief Justice and Justices Ronan and Counihan do not agree with so much of the foregoing opinion as holds that the book is not obscene, indecent, or impure.