Three Plays by Mae West

by Schlissel, Lillian

  JOAB H. BANTON District Attorney New York County.  JAMES GARRETT WALLACE, Assistant District Attorney Of Counsel.

  February, 1927

  The defendants herein are charged, by an information by the District Attorney in the Court of Special Sessions of the City of New York, with the misdemeanor of unlawfully giving and presenting an indecent, immoral, and impure play, in violation of Section 1140A of the Penal Law, and of unlawfully doing an act which offends public decency in violation of Section 1530 of the Penal Law.

  They now move for a certificate that it is reasonable that the charge against them be prosecuted by indictment, pursuant to the provisions of Section 31, Subdivision 1 of the Inferior Criminal Courts Act (L. 1910, Chap. 659, as amended by L. 1911, Chap. 576). That section provides that the Court of Special Sessions shall have, in the first instance, exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the City of New York, except charges of libel; but that it shall be divested of jurisdiction to proceed with the hearing and determination of any charges of misdemeanor in the following case:

  “(c) If, before the commencement of any such trial, a Justice of the Supreme Court in the Judicial Department where the trial would be had; or, if the charge be triable in the County of New York, a Judge authorized to hold a Court of General Sessions of the Peace in and for the County of New York; or, if the charge be triable in another county, a county judge thereof, shall certify that it is reasonable that such charge be prosecuted by indictment.”

  Applications of this character are addressed to the discretion of the Court. They are not granted as a matter of course. The Court must be satisfied that it is reasonable that the charge be prosecuted by indictment. Reasonable, in this connection, has been defined to mean just, proper, fair, and equitable. The burden of showing the reasonableness of the application is upon the defendant. He must show something more than a mere preference for a jury trial, to which he is not entitled as a matter of right. If the motion is made merely for the purpose of delaying the trial, it should not be granted.

  Peo. V. Levy, 24 Misc. 469

  Peo. V. Wade, 26 Misc. 585

  Peo. V. Rosenberg, 59 Misc. 342

  Peo. V. Willis, 59 Misc. 371

  Peo. V. Porter, 108 Misc. 100

  Peo. V. Byrne, 163 N. Y. Supp. 680

  Peo. V. Butts 121 App. Div. 226

  Peo. V. Title G. & T. Co., 180 App. Div. 64

  It is claimed: (1) That the question involved here is preeminently one for trial by jury; and (2) that the consequences of a conviction are such that it is reasonable that the issue should be tried by a jury. It is thus sought to bring the case herein within the grounds enumerated in the case of People vs. Rosenberg (supra). We submit that the defendants have not brought themselves within these grounds.

  (1) The defendant Morganstern is the manager and producer of the play “Sex” which is the alleged indecent show or play in question, and the other defendants are actors therein who participated in the presentation of this play. They have been held for trial in the Court of Special Sessions on an information charging violation of Sections 1140A and 1530, Penal Law. The test of criminality, as set forth in Section 1140 of the Penal Law, is whether a play is obscene, indecent, etc., and would tend to the corruption of the morals of youth or others (Penal Law, Sec. 1140A). Section 1530 of the Penal Law makes it a misdemeanor known as a “public nuisance” to unlawfully do an act which offends public decency. The question as to whether the play is indecent within the meaning of the statutes is one of fact (Peo. v. Muller, 96 N. Y. 408;

  Peo. v. Doris, 14 App. Div. 117). This is conceded by the defendants. Where only a question of fact is involved the defendant must show, to justify the issuance of a certificate, that the question is an intricate or complicated one, which may be far-reaching in its effects as a precedent. No such situation is here involved. The sole effect of trial of this case, no matter what the decision is, will be the effect it has upon the persons directly involved, inasmuch as cases of this kind have heretofore been tried both in Special and in General Sessions, and no precedents of any far-reaching importance can be decided by the failure to transfer in this particular instance. One of the leading cases involving the trial of an immoral show is People v. Doris (supra). That was tried in Special Sessions, and the Judges found that the play was immoral and tended to corrupt, and the Appellate Division upheld that conviction.

  (2) There is no property right involved in the case at bar. Such a right, within the meaning of the cases, is involved only in cases where the conviction would not only subject the defendant to fine, imprisonment, or both, but would also, ipso facto, work a forfeiture of a property right—as, e.g., a license possessed by a defendant to carry on a legitimate occupation (People v. Rosenberg, supra; People v. Porter, supra). In this case no license would be forfeited as the result of the conviction of these defendants if convicted. The sole property rights involved in this are the good will and box office attractive ness of the play itself, if any, and such rights should not be considered by the Court as of any importance in a case where a play is one of such character as is the play herein.

  On a similar application heard this day, February 23, 1927, in Part I of the Court of General Sessions, County of New York, Judge Allen, in denying a motion to transfer a play, said:

  “I see no need for delaying this decision even for the period neces sary for the purpose of submitting briefs. I have long been of the opin ion that the Justices of the Court of Special Sessions are well qualified to pass upon any question that may come before them for decision. They are able men, learned in the law, men of sound judgment and of broad experience, irrespective of whether property rights or any other rights are involved, I do not think for a moment that any party to a proceeding before those three Judges would be prejudiced in any respect. To my mind they are far better equipped by reason of their experience upon the bench to pass upon the question involved here than would be a jury of twelve laymen in a trial presided over by one of the judges of this Court. Counsel, you will have your day in court, and whatever verdict is rendered will be a sound and honest one. This court has a heavy calendar to contend with, and we are doing our very best here to reduce it and clean out the Tombs prison. A trial of this kind is bound to take considerable time, and we have red tape to go through in presenting the case before the Grand Jury, and then there are various other delays before we get to trial. Now, this is a matter of public interest. The trial should be expedited. Let it be expedited in the Court where it belongs, in the Court of Special Sessions. Motion denied.”

  Judge Allen well sums up the delays necessary incident to a trial where a misdemeanor is transferred from the Court of Special Sessions to the Court of General Sessions. The Court of Special Sessions, composed of three Judges, is the Court in which in the natural and usual course of events all misdemeanors should come to trial. In a case of this kind in which there is no extraordinary situation present to the Court, the Supreme Court, even though it has the power, should not interfere to divest the Court of Special Sessions of its jurisdiction. The Court of General Sessions is, as Judge Allen says, more than fully occupied with the trial of important felony cases. The question as to whether or not the actors and managers in this play have presented an indecent show or exhibition, or committed an act which offends public decency, is a matter of importance to them but is not a matter of extraordinary public importance so as to justify the transfer of this case to a higher court, nor will any precedent be established by the denial of this application that will bind the Supreme Court or any other Court in the future on any other application. The questions of fact and the questions of law involved in this case may as well be tried in the Court of Special Sessions as in the court where felonies are customarily tried.

  THE APPLICATION SHOULD BE DENIED.

  Respectfully submitted,

  JOAB H. BANTON DISTRICT ATTORNEY NEW YORK COUNTY

  JAMES GARRETT WALLACE Of Counsel


  February, 1927.

  3. DISTRICT ATTORNEY’S MEMORANDUM ON LEGAL PRECEDENTS FOR ARGUMENT IN THE PEOPLE OF THE STATE OF NEW YORK VS. CLARENCE WILLIAM MORGANSTERN, ET. AL.

  COURT OF GENERAL SESSIONS OF THE COUNTY OF NEW YORK.

  THE PEOPLE OF THE STATE OF NEW YORK

  -against-

  CLARENCE WILLIAM MORGANSTERN, ETAL. There are just two questions involved in this case:

  I The connection or participation of the various defendants in the acts charged in the indictment, namely, the presentation of the play “Sex” on the 15th of February, 1927, at Daly’s Theater.

  II The question as to whether or not the play is obscene, indecent, immoral or impure, and would tend to the corruption of the morals of youth, or others, within the meaning of Section 1140A of the Penal Law.

  The following authorities are respectfully called to the attention of the Court:

  Peo. vs. Muller, 96 N. Y. 408

  Queen vs. Hecklin, 3 Eng. L.R.Q.B. 369

  Peo. vs. Doris, 14 App. Div. 117

  U. S. vs. Bennett, 16 Blatch. Rep. 366

  U. S. vs. Means, 42 Fed. Rep. 605

  U. S. vs. Hahn, 45 Fed. Rep. 44

  CRIMINAL INTENT OR KNOWLEDGE

  Where a picture is sold or shown, a play advertised or given, or a book published, under this or analogous statutes, the intent with which it is advertised, given, sold or portrayed is immaterial. Criminal intent is knowledge. The term is defined by Penal Law Section, Subdivision 4, as follows:

  “The term knowingly imparts a knowledge that the facts exist, which constitute the act or omission of crime, and does not require knowledge of the unlawfulness of the act or omission.”

  In People vs. Muller, Supra, the Court held:

  “The defendant’s counsel, at the conclusion of the evidence made several requests to charge, which were denied by the trial judge. The leading purpose of those requests was to induce the Court to lay down the rule that the intent of a defendant in selling a picture claimed to be indecent and obscene is an important element in determining his guilt. The statute makes the selling of an obscene and indecent picture a misdemeanor. There is no exception by reason of any special intent in making the sale. The object of the statute was to suppress the traffic in obscene publications and to protect the community against the contamination and pollution arising from their exhibition and distribution.”

  In Regina vs. Hecklin, Supra, Cockburne, C. J., said:

  “I take it where a man publishes a work manifestly obscene, he must be taken to account for the intention which is implied from that act, and that as soon as you have an illegal act thus established, quoad [with respect to] the intention, and quoad [with respect to] the act; it does not lie in the mouth of the man who does it to say, ‘Well I was breaking the law, but i was breaking it for some wholesome and salutary purpose.” The law does not allow that; you must abide by the law, and if you would accomplish that object you must do it in a legal manner or let it alone. You must not do it in a manner that is illegal.”

  In Steele vs. Brannon, 7 L.R.C.L. Series, p. 267:

  “The probable effect of the publication of this book being prejudiced to public morality and decency, the appellant must be taken to have intended the natural consequences of such publication, even though the book was published with the objects referred to by his counsel.”

  In U. S. vs. Harmon, 45 F. R., 421:

  “These laws, as in the case of polygamy, are based upon public policy, and the law is arbitrary and holds the party responsible for the consequences of his acts when the means of knowledge are within his reach. It is a part of the common law of the land that indecent exposures, the uttering of obscene words in public, and the like, are indictable offenses. It rests upon the universal consensus that such things are impure, indecent and hurtful to the public morals and the common welfare; and as every man is supposed to know this fact, when he knowingly violates the statute, and gives publicity to such matters, he stands without an excuse in law.”

  Further quoting from the same case Judge Phillip said in answer to a defense interposed by the defendant that what he had done was an necessity in order to correct existing evils:

  “* * * Reduced to its essence, the ultimate position of defendant is this: that although the language employed in the given article may be obscene, as heretofore defined, yet as it was a necessary vehicle to convey to the popular mind the aggravations of the abuses in sexual commerce inveighed against, and the object of the publisher being to cor rect the evil and thereby alleviate human condition, the author should be deemed a public benefactor, rather than a malefactor. In short, the proposition is that a man can do no public wrong who believes that what he does is for the ultimate public good. The underlying vice of all this character of argument is that it leaves out of view the existence of the social compact and the idea of government by law. If the end sought justifies the means, and there was no arbiter but the individual conscience of the actor to determine the fact whether the means are justifiable, homicide, infanticide, pillage and incontinence might run riot; and it is not extravagant to predict that the success of such philosophy would remit us to that barbaric condition where

  ’No common weal the human tribe allied, Bound by no law, by no fixed morals tied, Each snatched the booty which his fortune brought, And wise in instinct, each his welfare sought.’

  It is the very incarnation of the spirit of anarchy for a citizen to pro claim that like the heathen he is a law unto himself * * *”

  Judge Philips continuing and alluding to the language in this publication, said:

  “* * * When the defendant and his co-adjutors say that such language and subject-matter are only impure to the overprudish it but illustrates how familiarity with obscenity blunts the sensibilities, depraves good taste, and perverts the judgment. To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular conception and heart such a thing as modesty * * *”

  In Grimm vs. U.S., 15 Sup. Ct. Rep. 471, the Court said:

  “It is unnecessary that unlawful intent as to any particular picture be charged or proved. It is enough that in a certain place there could be obtained pictures of that character, either already made and for sale or distribution, or from some one willing to make them, and that the defendant, aware of this, used the mails to convey to others the like knowledge.”

  4. THE PEOPLE VS. WILLIAM MORGANSTERN, MAE WEST, ET. AL., #168495, CITY MAGISTRATE S COURT, 10TH DISTRICT, 2/15/27. DESCRIPTIONS OF THE SCENES, ACTIONS AND DIALOGUE OF THE PLAY PROVIDED THE BASIS FOR ITS PROSECUTION.

  The People vs. Wm. Morgenstern

  CITY MAGISTRATE’S COURT

  BOROUGH OF MANHATTAN

  THE PEOPLE OF THE STATE OF NEW YORK

  on complaint of James S. Bolan, against-

  C. WILLIAM MORGANSTERN, EDWARD ELSNER, MAE WEST, BARRY O’NEILL, EEDA VON BEULOW, LYONS WICKLAND, PAGE RIPPLE, GORDON BURBY, DAVID HUGHES, D.J. HAMILTON, CONSTANCE MORGANSTERN, ANN READER, WARREN STERLING, THOMAS V. MORRISON, ALFRED L. RIGALI, FRANK R. WOOD, MARYE MORRISEY, IDA MANTWELL, CONDE BREWER, FRED LE QUORNE, FLORENCE DOHERTY, AND PETE SEGRETO. DEFENDANTS

  STATE OF NEW YORK CITY AND COUNTY OF NEW YORK

  JAMES S. BOLAN, being duly sworn, deposes and says, I am a Deputy Inspector of the Police Department of the City of New York, On Saturday, February 5th, 1927, in the City and County of New York, and for a long time prior thereto, the defendants above unlawfully advertised, gave, presented and participated in, an obscene, indecent, immoral and impure drama, play, exhibition, show and entertainment which then and there tend to the corruption of the morals of youth and others, and committed unlawfully an act which then and there offended against public decency in that on the said date at a certain theatre and playhouse known as Daly’s Theatre, situated there 24 West 63rd Street, the above named defendants unlawfully advertised, gave, presented and participated in a play then and there known as “Sex” that said play then and there consisted of
three certain “acts” and six “episodes” two “episodes” taking place in each act. “Episode” 1, as appears from the annexed programme, called Exhibit A, which deponent received at the time of his visit to said theatre, takes place in the living room of Margie LaMont in Montreal. The “episode” takes place in a room that purports to be for the encouragement of lewdness, fornication and unlawful sexual intercourses, and the defendant, Mae West, who appears in the character of Margie LaMont throughout said scene, portrays the character of a prostituteengaged in plying her trade at that place. In such scene or “episode” the defendant, Warren Sterling, who portrays the character of Rocky Waldron, takes the part of a pimp and procurer engaged in collecting moneys from such prostitutes who appear in the “episode” and the defendant, Gordon Burby, portrays character of one Dawson who, as a corrupt policeman, seeks to obtain “protection” money from the said pimp and prostitute. In the said “episode” the defendant Ann Reader portrays the character of Agnes Scott, another prostitute engaged in plying her trade in these premises thus exhibited. In the same “episode” the defendant D.). Hamilton portraying the character of Ensign Jones, and Barry O’Neill portraying the character of Lieutenant Gregg, appear as patrons of this disorderly resort and the prostitutes aforesaid and endeavor to enter into arrangements with the said Mae West, in the character of Margie LaMont, to commit an act of prostitution with them.

  The second “episode” takes place four hours later in the same disorderly resort. In it appears the same prostitute, Margie LaMont, portrayed by the defendant Mae West, the same Lieutenant Gregg, portrayed by defendant Barry O’Neill, the same Dawson, portrayed by defendant Gordon Burby, the same pimp, portrayed by Warren Sterling, and a new character who has not heretofore appeared, known as Clara Smith by the defendant Eeda Von Beulow. Clara Smith proves to be the wife of a wealthy man in Connecticut who is traveling without her husband and who informs the pimp, Rocky Waldron, in this “episode” that she is in Montreal looking for a thrill, and he solicits her to take him home with her. This married woman away from her husband then becomes friendly with the pimp, Rocky Waldron, and kisses him. He drugs and robs her; and it is at this point that the drunken prostitute, Margie LaMont, comes into the room with the drunken Lieutenant Gregg who, in “episode” 1 some four hours ago, had solicited her to have sexual intercourse with him. They had a conversation in which she invites him to stay for the evening, and he turns over to her a roll of money in bill form. She kisses him and sits on his lap. He then describes to her a trip that the fleet to which he is attached is to make to Trinidad and solicits this prostitute to accompany him on that trip. She thereupon dances before him in a way that causes him to grab her and say “You’d make a savage out of any man” Their attention is attracted to the character Clara Smith. The character Dawson enters and enquires as to the identity of the said Clara Smith, and upon the said Clara Smith informing the character, Dawson, that she was there as a result of what Margie LaMont had done, Margie LaMont threatens to get even with said Clara Smith and the act thereupon terminates.