the genuine plates in its possession. The proof was positive that plates had been manufactured for the bank by the American Bank Note Company, who retained possession of the same, and the agent's testimony therefore tends to show that the defendant had no authority for any such purpose. In view of this testimony it is not probable that any other person was authorized to engrave plates for the bank, and it devolved upon the defendant to establish to the contrary if such was the fact. The people were not bound, in view of the proof given, to show a negative, and the evidence introduced by the defendant, for the purpose of establishing authority, was not of itself suffi cient for that purpose. As the case stood it was for the jury to determine whether a want of authority was established, and it cannot as a matter of law be held, that there was a failure of the prosecution in this respect.

It is further objected that the indictment was fatally defective in not charging an intent to defraud some individual or corporation. The indictment charged an offense in violation of the provisions of sections 30 and 31 of the Revised Statutes (supra). There is nothing in these provisions which requires that there should be an intent to defraud any individual or corporation. The offense was committed in September, 1882, before the Penal Code went into effect, and hence the charge made in the indictment must be in accordance with the provisions of the statute cited, and therefore it was not necessary to allege any such intent. But aside from this view of the question presented, and assuming that the provisions of section 511 of the Penal Code are applicable, it is a sufficient answer to the point urged to say that the question was not raised so as to be available to the defendant. Section 469, of the Code of Criminal Procedure required a motion to be made for that purpose before or at the time when the defendant was called for judgment. This was not done but a motion was made in arrest of judg ment, and for a new trial, the grounds of which were confined to the exceptions taken at the trial and to the judge's charge, and did not therefore include this alleged defect. By failing to present the question, the defendant waived the right to object that the indictment was defective for want of an averment of an intent to defraud. The provisions of section 527 of the

Code of Criminal Procedure do not aid the defendant, as the power conferred upon the Supreme Court to grant a new trial, when the verdict is against the weight of evidence, or against law, or when justice required a new trial, whether any exception shall have been taken or not in the court below, is a discretionary one, and as it cannot be said that the discretion has been abused by the General Term of the Supreme Court, the decision is not reviewable upon appeal to this court.

It is also insisted that there was no proof of an intent on the part of the defendant to defraud. The question of intent was one for the jury. Although the plate was not entirely complete, yet it was sufficiently so, to evince that it was intended for the printing of notes of the description of those issued by the bank named thereon. This is shown by the description given by one of the witnesses upon the trial. It conforms to similar parts of a genuine plate. The question of defendant's good faith was for the jury, and in view of the evidence it cannot be said that there was no ground for claiming that the act of the defendant was without any intent to defraud or to commit a crime in violation of the statute. The judgment should be affirmed.

All concur.

Judgment affirmed.

Supreme Court-General Term—First Department.

March, 1884.

PEOPLE v. MULLER.

INDECENT AND OBSCENE PICTURES, LITERATURE, ETC.-PENAL

In section 317 of the Penal Code, in relation to obscene or indecent books, writings, papers, pictures, drawings or photographs, the words obscene or indecent are used in their popular sense and understanding, and include all pictures, drawings and photographs of an indecent and immoral tendency, intending to include as obscene such as are offensive to chastity, demoralizing and sensual in their character, by exposing what purity and decency forbid to be shown, and productive of libidinous and lewd thoughts or emotions.

The drawing, pictures, photograph or writing, should be exhibited to and observed by the jury, and it is for them to determine, as a matter of fact, in the exercise of their good sense and judgment, whether or not they are obscene and indecent. Upon the trial of an indictment under said section, evidence that the photographs in question were taken from pictures publicly exhibited in reputable European places is inadmissible. Nor are copies of other photographs and illustrated newspapers, which defendant claims are permitted to be sold from day to day, admissible as evidence.

APPEAL from a judgment convicting the defendant of a misdemeanor.

In October, 1883, the defendant August Muller was indicted, under § 317 of the Penal Code, in the city of New York, for selling a picture, to an agent of "The Society for the Prevention of Vice," which picture in the indictment, is designated as an "indecent and obscene photograph, representing a nude female in a lewd, obscene, indecent, scandalous, and lascivious attitude. and posture ;" and the indictment also charges him with hav ing in his possession, with intent to sell, other photographs of a similar character, but which are further described as being

"immoral." The prisoner pleaded not guilty, and the issues thus raised came on to be tried before Judge BRADY and a jury in a court of Oyer and Terminer, held in the city of New York, December 17, 1883, and resulted in a verdict of guilty. The defendant was thereafter sentenced to pay a fine of $50. Nine pictures were received in evidence to sustain the indictment.

It was claimed that the defendant was a clerk in the employ of a dealer in books, engravings and photographs, and that the sale, etc., in question was made in the course of his employment.

The prosecution, sustained by the court, insisted that the jury should arrive at a conclusion from the inspection of the pictures, and on the part of the defense it was contended, that while forming their judgment, they should have the benefit of skilled opinions, and of contrasting the pictures offered, with others.

Exceptions were taken to the rulings of the court in excluding evidence, and to its refusals to charge.

John D. Townsend, for the prisoner appellant.-I. The court erred in excluding from the inspection of the jury the picture "Dolly Adams," and others of that style, and other common pictures of half-nude actresses, which were offered by the defense. These were offered as contrast to the photographs for the sale of which the defendant was upon trial, for the purpose of arousing in the minds of the jury a distinction between real art, and "indecency " or " obscenity."

II. The court erred in excluding the question, “Did you ever sell to any boy under twenty-one years old any of these pictures ?”—meaning pictures of the same kind. The principal ground upon which legislation to suppress obscene and indecent books and pictures has always relied for public support, is, that it protects the morals of youth.

III. The court erred in excluding the question, "Look at that picture by Bougereau, and state whether the original is on exhibition at the Hoffman House?" The picture referred to was one of the nine for the sale of which the defendant was indicted. It would have been evidence before the jury of the

popular judgment on that picture, and was in the nature of instruction to the jury on the subject before them.

IV. The counsel for the defendant offered to show to the jury, by the catalogue of 1880 of the Salon in Paris, that the original of one of these pictures which were seized as obscene or indecent called "La Reposé Atélier," by F. de Chambord, was on public exhibition in that salon in 1880. The evidence. was objected to and the objection was sustained by the court, and exception taken. This was error. Counsel promised to follow up and show by artists that these photographs were necessary for art purposes, and were used in many instances in the place of models. The defendant, however, was forced to content himself with a statement of the prosecuting officer "that he would admit that all nine pictures were exhibited at different times in the Paris Salon."

V. The court erred in refusing to allow the defendant to ask the following questions: "Is there a distinguishing line, as understood among artists, between pure art and obscene and indecent art?" "I ask you whether there is a pronounced division in your branch of art, between pure art, so far as pictures are concerned, and obscene and indecent art ?" Both of the gentlemen to whom these questions were put had made art a study for years.

The following cases, although not directly in point as to subject-matter, indicate the true rule regarding such testimony. Rochester & Syracuse R. R. Co. v. Budlong, 10 How. Pr. 230; Lamoure v. Caryl, 4 Den. 370; Greenfield v. People, &c., 85 N. Y. 83; Platner v. Platner, 78 N. Y. 90.

VI. The court erred in refusing to charge the jury as follows: "That where copies of well recognized works of art are not thrust forward wantonly, or for the purpose of exciting lust, or disgust, but are exhibited and sold solely as perfect copies of recognized works of distinguished merit, on exhibition in the finest public galleries in the world, they are justified by the object of their use, and are not obscene nor indecent within the meaning and purpose of the law."

VII. The court erred in refusing to charge the jury as follows: "That the places where, and the circumstances under which pictures representing nude figures are offered for exhibi