Commonwealth v. Mochan

Superior Court of Pennsylvania, 1955.

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 Pennsylvania before, and it’s up to the legislature rather than the courts to make it a crime in an age when statutes dominate the criminal law.  Woodside says the judiciary must use self-restraint and not overstep its bounds just like the other two branches of government.


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.


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