Does a persistent course of obscene, lewd telephone calls to a married woman, which potentially affects public morality, constitute an indictable common law misdemeanor in Pennsylvania even though no statute criminalizes it and no precise precedent exists?

Michael Mochan (defendant) telephoned Louise Zivkovich, a stranger to him and a married woman of the highest character and repute, repeatedly over a period of more than one month in early 1953. He called as often as three times each week, at any hour of the day or night, including on the specific dates laid in the indictments. His language was obscene, lewd, and filthy. He suggested intercourse with her and, on a number of occasions, spoke of sodomy in loathsome language. The calls came in over a four-party line, so the operator or others on the line could have listened in, and at least two other persons in Zivkovich's household heard some of the obscene language over the telephone. Through cooperation with the telephone company, the police located Mochan and arrested him at the telephone after the completion of his last call. Zivkovich later recognized his voice in a telephone conversation with him set up by the police. No Pennsylvania statute made this conduct a crime.

Two indictments (Bills 230 and 231) charged Mochan with the same offense on different dates, framed in the language of a common law misdemeanor and endorsed by the District Attorney as "Immoral Practices and Conduct." Mochan was tried by a judge without a jury and was convicted on both charges and sentenced. He moved in arrest of judgment, contending that the conduct charged was not a crime at common law or by statute. The court en banc refused his motions. Mochan appealed to the Superior Court of Pennsylvania, which affirmed the judgments and sentences.

(Hirt, J.)

Yes. Pennsylvania retains the common law of crimes except where statute has abrogated it, and the conduct charged is an indictable common law misdemeanor.

The test is not whether a precedent can be found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. The common law is broad enough to punish as a misdemeanor, even without exact precedent, any act that directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, including acts that injuriously affect public morality. Commonwealth v. Miller, 94 Pa. Super. 499, 507.

Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law, and any act that from its nature scandalously affects the morals or health of the community is indictable. Barker v. Commonwealth, 19 Pa. 412 (open obscenity); Commonwealth v. Glenny, 54 D. & C. 633 (indecent liberties tending to debauch morals); Updegraph v. Commonwealth, 11 S. & R. 393 (vilifying the Christian religion).

Smith v. Commonwealth, 54 Pa. 209, which held that merely persuading a married woman to commit adultery is not indictable, is distinguishable. Mochan's criminal intent was shown by overt acts beyond oral solicitation of adultery: vile suggestions of sodomy and persistent lewd, immoral, and filthy language. Potentially at least, his acts injuriously affected public morality, because the operator or anyone on the four-party line could have listened in and two other household members actually heard some of the language.

The District Attorney's endorsement of the offense name is unimportant. The factual charges in the body of the indictments identify a common law misdemeanor, and the testimony established guilt. The judgments and sentences are affirmed.

Dissent (Woodside, J., joined by Gunther, J.) The conduct is reprehensible, but it is not a crime under Pennsylvania law. The majority declares a new crime by applying general principles such as that it is a crime to do anything that injures or tends to injure the public, and even acts with a merely "potentially" injurious effect on public morality. Under the constitutional division of powers, the legislature, not the courts, determines what injures the public and what requires the state to punish the wrongdoer. If courts apply such general principles to whatever conduct seems injurious, the legislature has no reason to enact criminal laws. After nearly two hundred years of constitutional government, courts should not arrogate to themselves the power to declare for the first time that certain acts are crimes. Nothing but judicial self-restraint prevents this invasion of the legislative field. Until the legislature declares the conduct a crime, the courts should not do so. The judgment should be reversed and the appellant discharged.