## Facts

- August Muller, a bookstore clerk, possessed and sold photographic reproductions of paintings depicting nude women.
- The photographs were copies of paintings shown at reputable exhibitions, including the Paris Salon and at least one shown at the Centennial Exhibition in Philadelphia.
- The prosecution introduced the photographs at trial and proved Muller sold them in the ordinary course of his employment.
- The appellate record did not include the pictures or detailed descriptions beyond that they depicted nude females, were reproductions of exhibited paintings, and were identified by title.
- Muller offered proposed expert testimony from persons skilled in art to distinguish “pure” art from “impure” or indecent art; the trial court excluded it.
- A jury convicted Muller of possessing and selling indecent and obscene pictures in violation of Penal Code § 317; the intermediate appellate court affirmed.

## Issues

1. Whether the defendant could challenge the sufficiency of the evidence of obscenity when the pictures were not included in the appellate record and no production notice was given.
2. What legal test governs whether a picture is “obscene” or “indecent” under Penal Code § 317.
3. Whether expert testimony on artistic standards distinguishing pure art from obscene art is admissible on the obscenity question.
4. Whether Penal Code § 317 requires proof of a special or corrupt intent beyond knowing possession or sale.
5. Whether prior exhibition of the originals in reputable public venues bars a finding that the reproductions are obscene.

## Decision

- The Court of Appeals affirmed the conviction.
- Because the pictures were not made part of the record (and no notice to produce was given), the court would not review the jury’s obscenity determination on a claim of evidentiary insufficiency.
- The trial court properly excluded expert opinions on whether the pictures were obscene.
- The statute does not require proof of a special intent; possession or sale of obscene material completes the offense.
- Exhibition history of the original paintings in reputable venues does not, as a matter of law, preclude a jury finding that the photographs are obscene.

## Legal Principles

- A party challenging a factual determination that depends on the contents of an exhibit must ensure the exhibit is part of the appellate record or give notice to produce it; otherwise, the appellate court will not reweigh the finding.
- For pictures or statues, obscenity depends on whether the work’s motive is pure or impure, whether it is naturally calculated to excite impure imaginations, and whether other attractive qualities are merely accessory to that primary purpose.
- The statutory terms “obscene” and “indecent” are words of common understanding; opinions from witnesses (expert or lay) on the ultimate obscenity question are inadmissible.
- Penal Code § 317 imposes liability for the traffic in obscene materials without a requirement of special or corrupt intent beyond the prohibited acts.
- Prior display of an original work in respected public exhibitions does not control the legal determination of obscenity for reproductions; the jury may still find the material obscene.

## Conclusion

The court upheld a clerk’s conviction for selling obscene photographs, holding that obscenity is judged by the work’s primary motive and natural tendency rather than mere nudity, that expert artistic opinions are not admissible to decide obscenity, that no special intent is required under Penal Code § 317, and that an appellate sufficiency challenge fails when the images are not included in the record.


People v. Muller, 96 N.Y. 408 (N.Y. 1884)