United States Supreme Court Cases & Opinions

U.S. Supreme Court

Mishkin v. New York, 383 U.S. 502 (1966)

Mishkin v. New York

No. 49

Argued December 7, 1965

Decided March 21, 1966

383 U.S. 502

Syllabus

Appellant was convicted of violating § 1141 of the New York Penal Law for publishing, hiring others to prepare, and possessing with intent to sell obscene books.

Held:

1. The statute is not impermissibly vague. Roth v. United States, 354 U. S. 476, 354 U. S. 491-492. Pp. 383 U. S. 506-507.

2. The books were properly found to be obscene. Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement of the Roth test is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex of the members of that group. P. 383 U. S. 508.

3. There was ample evidence that appellant possessed the requisite scienter. Pp. 383 U. S. 510-512.

4. The unrestricted notation of probable jurisdiction of the appeal may be regarded as a grant of the writ of certiorari as to appellant's claim that the books had been illegally seized and that their admission into evidence was therefore improper. However, such writ is dismissed as improvidently granted for lack of sufficient clarity in the record as to justify resolution of the issue. Pp. 383 U. S. 512-514.

15 N.Y.2d 671, 724, 204 N.E.2d 209, 205 N.E.2d 201, affirmed.

Page 383 U. S. 503