¶1I agree entirely with Judge Burke’s construction of the statute, but deem it unnecessary to remand for a new trial. The informations follow the language of the statute so far as pertinent. Defendants moved to dismiss the informations at the end of the People’s case upon the ground that, even if the court should find that the books were obscene, the defendants' could not be convicted for the reason that the People failed to establish scienter on their part, relying on Smith v. California (361 U. S. 147). The court below, after reviewing the evidence, found “as a fact, that the defendants had knowledge of the contents of the books ”, and there was sufficient evidence to support that finding. I would affirm.
¶2Chief Judge Desmond and Judges Dye and Fuld concur with Judge Burke; Judge Van Voorhis dissents and votes to reverse and to dismiss the informations upon the ground that section 1141 of the Penal Law is unconstitutional in an opinion in which Judge Foster concurs; Judge Froessel dissents and votes to affirm in a memorandum.
¶3Judgments reversed and new trials ordered.