Commonwealth
v. Mochan
Superior
Court of
177
Pa.Super. 454, 110 A.2d 788.
Dressler,
p. 78-81
Facts:
The
defendant harassed a woman on the phone.
His conduct was not forbidden by any particular statute, but a general
provision in the Pennsylvania Penal Code “grandfathered” in common law
crimes. The defendant was
convicted. He appealed on the basis that
his conduct did not constitute a common law crime.
Issue:
Can the
court uphold a conviction for a misdemeanor based only on common law?
Rule:
Any act
that “outrages decency and is injurious to public morals” is a misdemeanor
under common law.
Analysis: The majority finds that the
conduct would be considered outrageous by most people, and thus could have been
punished under common law. In turn, the
“grandfather” provision in the Pennsylvania Penal Code says that any act that
is a crime under common law is still a crime.
Therefore, states the majority, the conduct of the defendant is a
misdemeanor.
Judge
Woodside dissented, arguing that the majority’s decision inappropriately took
away the power and responsibility of the legislature to make criminal
laws. Woodside argues that what the
defendant did was never a crime in
Conclusion:
The court
upheld the judgments and sentences.
Judge Woodside dissented.
Notes
and Questions
1. The majority
would argue that this ruling does not create a new crime, but rather enforces a
prohibition that has long existed against a certain type of conduct. They would explain that this must be the
intent of the legislature in including the “grandfather” section of the Penal
Code. On the other hand, Woodside would
claim that this is a clear violation of the principle of legality. Judge Woodside would say that phone
harassment was not a crime as defined by statute at the time of the court’s
ruling. Statutes are the primary way
contemporary criminal law is defined.
Therefore, Woodside would conclude that the court created a new crime.
2. I think the
ruling and dissent create a good balance: they enforce a just result in the
present case, but also serve to warn the legislature that they need to stay on
top of developments in contemporary society and define new crimes to fit new
technology. In a way, the court says:
“You got away with it this time (we’ll punish the guy). But next time, we might let the guy off
unless you write a statute.” I don’t
think the court should make a habit of creating crimes, but if the legislature
has been snoozing, I think it’s reasonable for the court to step in and set
things right. In general, however, we
believe that elected and accountable representatives ought to draft criminal
laws rather than appointed and unaccountable judges. If the legislature had punted by passing an
enormously broad statute saying that anything bad is criminally punishable,
they would be violating the doctrine of void-for-vagueness. Even if justice had been served in the
present case, the legislature’s irresponsibility would open the criminal
justice system open to unbelievable abuse.
3. At the time of
this case and in this court’s jurisdiction, sodomy is illegal while adultery is
not illegal. Many people today do not
agree that this should be so, but it would explain why solicitation of one act
is illegal and not solicitation of the other act.
4. So common law
is no longer controlling, but it does have authority and influence.