Commonwealth v. Mochan Cases of Interest >  Criminal

Commonwealth v. Mochan

Commonwealth v. Mochan – 177 Pa.Super. 454 (1955)

• Plaintiff: Commonwealth of Pennsylvania
• Defendant: Michael Mochan

• Defendant called a woman as often as three times a week at any hour (day or night) with the intention of seducing and corrupting her
• Defendant made malicious comments calling her lewd, immoral, and other filthy things
• She allegedly suffered injury and oppression and the Commonwealth of Pennsylvania was also offended

• Defendant was tried before a judge without a jury, was convicted on both charges, and was sentenced
• Defendant appeals on ground that the conduct does not constitute a misdemeanor at common law

• Whether the alleged crimes could have been prosecuted and the offenders punished under the common law?

• (1) The conduct alleged in the indictments was not prohibited by statute but section 1101 of Penn. Penal Code of 1939 states “every offense punishable by statute or common law of this Commonwealth and not specifically provided for by this Act shall continue to be an offense punishable.”
• (2) Commonwealth v. Miller – common law is sufficiently broad to punish as a misdemeanor, even if no exact precedent, any act which directly injures or tends to injure the public to the extent that requires the state to interfere and punish wrongdoer
• (3) Commonwealth of Penn. v. DeGrange – whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law
• (4) Smith v. Commonwealth – to merely endeavor to persuade a married woman to commit adultery is not indictable
• (5) This case is not like Smith because Defendant’s overt acts beyond mere oral solicitation of adultery
o Defendant used vile and disgusting suggestions of sodomy, filthy language, the acts affected public morality as others were witness to the immoral and obscene language

• Judgments and sentences against Defendant affirmed

• The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth
• They have declared it to be a crime to do an act injuriously affecting public morality and to do any act which has a potentially injurious effect on public morality
• Under the division of powers in our Constitution it is for the legislature to decide what injures or tends to injure the public
• We are invading the legislative field by declaring for the first time that certain acts are crimes

• It appears that the Dissent is correct because the arguments made by the dissent are the current law
o The legislature has the primary right to define what crime is and has the power to make laws
• If the legislature has not yet commented on a situation, the judge/court cannot jump into using common law because the judicial branch would therefore be making the laws and it is not their job/right to do so
o Therefore, the court would have to find in favor of the Defendant and wait for the Legislature to create a law regarding those circumstances

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