D made a series of obscene phone calls to Louise Zivkovich in which he suggested she commit adultery and have sodomy.
The prosecutor indicted D for "intending to debauch, corrupt, embarrass, and vilify" the person called. This conduct is not specifically prohibited by statute.
The prosecutor contended that the conduct did constitute a common law crime and was punishable under the common law of PA.
Procedural History:
Lower court found D guilty.
PA Superior Court affirmed, found D guilty.
Issues:
May a D be prosecuted for committing a common law crime even if such a crime has not specifically been enacted into legislation?
Holding/Rule:
A person may be prosecuted for committing a common law crime even if such a crime has not specifically been enacted into legislation.
Reasoning:
The Penal Code of PA provides that every offense punishable by the statutes or the common law shall continue to be a punishable offense.
The test is whether the alleged crimes could have been prosecuted under common law, not whether a statute will cover it, then.
The common law is broad enough to punish this offense as a misdemeanor.
Even if there is no precedent and no statute, an act that openly outrages decency is a misdemeanor at common law.
Dissent:
It is up to the legislature to determine what injures the public and what crimes should be punished. There is division of powers in the constitution.
Until the legislatures says that what D did was a crime, it should not be a crime.
Notes:
Nearly all jurisdictions have abolished common law offenses. RI still authorizes them, and they are important still in many states.
