Common Law Crimes in the United States

Source: Columbia Law Review, Vol. 47, No. 8 (Dec., 1947), pp. 1332-1337
Published by: Columbia Law Review Association, Inc.
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1332 COLUMBIA LAW REVIEW

statutes may be administered in such a way as to provide either effective or in-

effective supervision over rates within that state. But whether the states will
successfully cooperate to develop a uniform regulatory approach so necessary
for an extensive business that crosses state and national boundaries will in-
volve, of course, not the actions of any single administrator, but the coopera-
tive efforts of fifty-one.l27 That cooperation will determine the success or
ultimate replacement by federal legislation of this unique attempt at state
regulation of a complex interstate field of endeavor.

COMMON LAW CRIMESIN THE UNITEDSTATES

Criminal law today is thought of as statute law, and it is not generally
realized that this is literally true in less than half of the American jurisdic-
tions. A majority of the states retains to some degree the common law of
crimes received as part of the common law of England. In these jurisdictions
criminal law concepts and precedents developed in another age exert an in-
fluence much more pervasive than that found in code states. It is the pur-
pose of this Note to inquire into the extent to which the common law of
crimes is still significant in American jurisdictions, and to evaluate that ex-
isting law with respect to those practical needs which it purports to fill.
In eighteen states the common law of crimes has been abolished either
expressly by statute' or implicitly by the substitution of a comprehensive
code.2 This is not to say that the influence of the common law has been com-
pletely eradicated in those jurisdictions. In some of them, there are "catch-
all" statutes declaratory of the entire common law of conspiracy.3 Other
states have even broader provisions proscribing "any act which openly out-

127. The model laws specifically provide for consuitation among insurance commis-
sioners to develop uniform administrationof the laws. E.g., Iowa, c. 259, ? 13(c), c. 260,
? 13(c).
1. ARIZ. CODEANN. ?43-101 (1939); CAL. PEN. CODE?177 (1941); IND, ANN.
STAT. ? 9-2401 (Burns 1933); LA. CODECRIM. LAW & PROC.ANN. ?740-7 (1943);
MONT. REV. CODESANN. ? 10712 (1935); N. Y. PEN. LAW ? 22; OKLA. STAT. tit. 21, ? 2
(1941); S.D. CODE? 13.0103; TEX. PEN. CODEANN. art. 3 (Vernon 1938).
2. Georgia: White v. State, 51 Ga. 288 (1874); Iowa: Estes v. Carter, 10 Iowa 400
(1860); Kansas: State v. Young, 55 Kan. 349, 40 Pac. 659 (1895); Minnesota: State v.
Shaw, 39 Minn. 153, 39 N.W. 305 (1888); Nebraska: State v. De Wolfe, 67 Neb. 321,
93 N.W. 746 (1903); Ohio: Vanvalkenburg v. State, 11 Ohio 404 (1842) ; Oregon: State
v. Gaunt, 13 Ore. 115, 9 Pac. 55 (1885); Utah: Moorehouse v. Hammond, 60 Utah 593,
209 Pac. 883 (1922) (by implication). Though there appears to be no conclusive in-
terpretation to the state code, the inclusion of North Dakota in this category appears
justified: compare N. D. REV. CODE? 1-0106 (1943) with id., ?? 12-1801, 12-1901.
3. ARIZ. CODEANN. ?43-1101 (1939); IOWA CODE? 719.1 (1946); MINN. STAT.
ANN. ?613.70 (West 1945); MONT. REV. CODESANN. ? 10898 (1935) ; N. Y. PEN. LAW
?580-6; N.D. REV. CODE?12-0301 (1943); S.D. CODE? 13.0301 (1939); UTAH CODE
ANN. ? 103-11-1 (1943); Note, The Use of Analogy in Criminal Laz, 47 COLUMBIA
LAW REV. 613, 624 (1947).

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 NOTES 1333

rages public decency,"4 apparently designed to include all the common law
nuisances.5 And in all jurisdictions, content is given to many enactments of
specific crimes only by resort to common law definitions.6
In the other thirty states and the District of Columbia common law
crimes as such, together with English statutes antedating the time of recep-
tion of the common law,7 persist insofar as they have not been superseded by
specific enactments or are not unsuitable to the needs of the state. In many
of these jurisdictions prosecutions for common law felonies are possible,8 and
maximum penalty provisions in case of conviction exist in only a few of
these.9 In ten of these thirty states legislative enactments have reduced all
non-codified crimes to the status of misdemeanors.110
In all these thirty-one jurisdictions, the principal felonies and more com-
mon misdemeanors have been specifically defined by legislation. But it is worthy
of note that the mere existence of a statute on the subject of a common law
crime does not, without clear legislative intent, abrogate the common law"-
a factor which may render somewhat uncertain the exact significance of the
statute. Thus, prosecutors have been permitted to elect whether to proceed
under the common law or the applicable statute.12 Indictments for unlawful
combination in restraint of trade,13 criminal conspiracy,14 disturbing the
4. N.D. REV.CODE?? 12-1801, 12-1901 (1943); OKLA.STAT.tit. 21, ?22 (1941);
LAWS ANN. ? 23-927 (1940) ; S.D. CODE
ORE. COMP. ?? 13.1401,13.1501,13.1601,13. 1701
(1939).
5. See Multnomah County Fair Ass'n v. Langley, 140 Ore. 172, 182; 13 P.2d 354,
358 (1932).
6. See, e.g., Levinson v. United States, 47 F. 2d 470, 471 (C.C.A. 6th 1931); Shires
v. State, 2 Okla. Cr. 89, 97, 99 Pac. 1100, 1103 (1909).
7. English statutes, enacted before the date determinedas that of reception, form a
part of the common law, civil and criminal, of all common law jurisdictions. 1 BISHOP,
CRIMINAL LAW ? 190 (9th ed. 1923).
8. Colorado, Connecticut,Delaware, District of Columbia, Idaho, Maine, Maryland,
Massachusetts,Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Penn-
sylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, West Virginia.
Wyoming may also be included in this group: WYO.COMP.STAT.ANN. ? 16-301 (1945);
but no cases applying the common law of crimes in that state have been found.
9. CONN. GEN. STAT. ?6500 (1930); IDAHO CODEANN. ? 17-303 (1932); MICH.
COMP.LAWS? 17343 (Mason 1929); NEV. COMP.LAWSANN. ? 10507 (1929); N.C.
GEN. STAT.ANN. ?? 14-2, 14-3 (1943) ; R. I. GEN. LAWSc. 621, ? 1 (1938); S.C. CODEANN.
?1034-38 (1942); D.C. CODE? 22-107 (1940). In the District of Columbia all common
law offenses are felonies, by operation of the penalty provision making all common law
offenses punishableby imprisonmentfor five years. United States v. Davis, 71 F. Supp.
749 (D. D. C. 1947); Palmer v. Lenovitz, 35 App. D.C. 303 (1910). The reasoning of
this rule would apply equally in Rhode Island: R. I. GEN.LAWSc. 621, ? 1 (1938).
10. ALA. CODEANN. tit. 15, ? 327 (1940); ARK. DIG. STAT. ? 1680 (1937); FLA.
STAT. ? 775.02 (1941); ILL. REV. STAT. c. 38, ? 600 (1945); Miss. CODEANN. ? 2562
(1942); Mo. REV. STAT.ANN. ?646 (1939); N. J. REV. STAT.?2:103-1 (1937); 4
WASH. REV. STAT. ANN. ? 2299 (1932); Wis. STAT. ? 353.25 (1945).
11. BISHOP, STATUTORY CRIMES?? 153-55 (3d ed. 1901).
12. See Chicago, Wilmington & Vermillion Coal Co. v. People, 114 Ill. App. 75, 109
(1904); BISHOP, STATUTORY CRIMES? 164 (3d ed. 1901).
13. Chicago, Wilmington & Vermillion Coal Co. v. People, 114 Ill. App. 75 (1904),
af'd, 214 Ill. 421, 73 N.E. 770 (1905).
14. State v. Dalton, 134 Mo. App. 517, 114 S.W. 1132 (1908); People v. Curran,
286 Ill. 302, 121 N.E. 637 (1918).

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1334 COLUMBIA LAW REVIEW

peace,15and even murder16have been held sufficient under the common law
despite failure of the prosecution in each case to allege facts satisfying a
statute defining the same offense.
While it is apparent from the above that the common law of crimes
still has substantial import, an examination of the cases shows that the great
majority of prosecutions under the common law are for petty matters, and
that statutory preemption of the major and more common offenses has been
fairly complete. Moreover, with the rise of the legislature, the judiciary has
shown marked reluctance to innovate or to apply ancient and obscure prec-
edent in fields which it concedes to be the proper province of legislative
action.17 Judicial discretion has been almost confined to the petty field. Thus,
while statutes created and modernized the crimes of embezzlement and ob-
taining money under false pretenses,18 common law courts nevertheless felt
themselves competent to create the crime of "public mischief," which con-
demned petty conduct such as giving false alarms to the police,19 or the
"indecent" cremation of a human body.20 Similarly, courts have hesitated
to accept a common law felony of suicide;21 but common scolds are still
punishable under ancient precedent in Pennsylvania,22 and "negligent es-
cape"23has been held a crime in the District of Columbia.24
These observations lead to the conclusion that, by legislative and judicial
consent, the substantive common law of crimes as such has been abandoned
as a major instrument of social policy. It continues, nevertheless, as a reser-
voir of substantive law to stop up the holes left by the legislatures, "ready to

15. State v. Cantwell, 126 Conn. 1, 8 A.2d 533 (1939), rev'd on other grounds, Cant-
well v. Connecticut,310 U.S. 296 (1940).
16. Hamilton v. United States, 26 App. D. C. 382 (1905).
17. 3 STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND 360 (1883).
18. Under the common law, acquisitive conduct was only larcenous where there was
an unlawful taking, hence where a victim parted willingly with the possession of his prop-
erty, subsequentconversion by the bailee or servant was not a crime. King v. Joseph
Bazely, 2 Leach 835, 168 Eng. Rep. 517 (K.B. 1799). In consequenceof this case there
was passed the statute 39 GEO.III c. 85 (1799) making breaches of faith by certain
specifiedclasses of persons criminal. The crime of obtaining by false pretenses was also
of statutory origin: 4 BLACKSTONE,
COMMENTARIES
? 158; and originally included only
cheatingby use of false tokens or weights: Commonwealthv. Warren, 6 Mass. 72 (1809)
1 BISHOP, CRIMINALLAW ? 571 (1) (9th ed. 1923).
For an example of the persistent influence of overly nice common law distinctions
in this field, see People v. Noblett, 244 N.Y. 355, 155 N.E. 670 (1927).
19. Rex. v. Manly [1933] 1 K.B. 529.
20. State v. Bradbury,136 Me. 347, 9 A. 2d 657 (1939).
21. Semble, May v. Pennell, 101 Me. 516, 64 Atl. 885 (1906); Commonwealthv.
Dennis, 105 Mass. 162 (1870); State v. La Fayette, 15 N. J. Misc. 115, 188 Atl. 918
(C.P. 1937).
22. Commonwealthv. Smith, 17 Berks. 40 (Pa. 1924); N. Y. Times, Oct. 12, 1947,
? 1, p. 27, col. 2.
23. I.e., negligently permitting a prisoner's escape.
24. See United States v. Davis, 71 F. Supp. 749, 751 (D.D.C. 1947). Another
hoary common law rule was invoked to quash the indictment: that indictmentfor negli-
gent escape lay only against the principal gaoler, not his subordinate.2 BISHOP,CRIM-
INAL LAW ? 1097 (9th ed. 1923).

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 NOTES 1335

be called into activity whenever the occasion may require."25 On its face
this reservoir, confined as it is to misdemeanors, has a double aspect. It rec-
ognizes in the courts a limited power to create new crimes where new situa-
tions demand, as well as to hold criminal today conduct proscribed by the
common law of the past.
That there are limitations on these powers is clear. Most obvious is the
ad hoc power of the legislature to nullify for future application a judicial
determination that described conduct is criminal.26 From a defendant's point
of view, however, a control which is invoked only after the imposition of
penalty is something less than satisfactory; and from the point of view
of society, legislation so engendered is not likely to produce a rational system
of criminal law.
Constitutional limitations also confine the scope of permissible conviction
for common law crimes. Such limitations appear in both the texts of recep-
tion provisions and in decided cases. Provisions adopting the common law
typically provide that only so much of that law shall be in force as is "not
repugnant to or inconsistent with the constitution, laws, and institutions"27
of the state, or only adopt it "so far as the same is applicable."28 On this
ground it has been held that the English law of conspiracy,9 insofar as it
required neither illegality of means nor of ends,30 and the English statutes
and common law of laborers and apprentices,31 were not in force in this
country. But repugnancy and applicability are vague criteria which in their
subjectivity amount to little more than carte blanche to the courts to use their
own discretion. While this discretion has itself been considered an adequate
limitation on judicial conduct,32 to rely on it entirely erroneously assumes
that no judge would willingly abuse it and that all judges are preternaturally
wise-hypotheses open to some question.
More substantial limitations are the civil liberty guarantees of the state
and federal constitutions. They have the same application to common as to
statute law, and in individual cases may be invoked to annul a common law
conviction, where there has been abridgment of some guaranteed freedom,
such as the freedom of speech, press, or religion.33

25. State v. Eastern Coal Co., 29 R. I. 254, 272, 70 Atl. 1, 5 (1908).

26. E.g., 4 MASS. ANN. LAWSc. 149, ?24 (1942), specifically denying the crim-
inality of certain labor activities.
27. IDAHOCODEANN. ? 70-116 (1932).
28. ILL.REV.STAT.C.28, ? 1 (1945).
29. Commonwealth v. Hunt, 45 Mass. 111 (1842). Contra: Commonwealth v.
Carlisle, Brightly 36 (Pa. 1821).
30. King v. JourneymanTaylors, 8 Mod. 10, 88 Eng. Rep. 9 (1721).
31. Commonwealthv. Hunt, 45 Mass. 111 (1842).
32. See State v. Glidden, 55 Conn. 46, 71, 8 Atl. 890, 893 (1887); 1 BISHOP,CRIM-
INAL LAW ? 42 (9th ed. 1923); Hall, Nulla Poena Sine Lege, 47 YALEL. J. 165 (1937).
33. This principle was applied in Cantwell v. Connecticut, 310 U.S. 296 (1940)

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1336 COLUMBIA LAW REVIEW

Even if it is granted that these limitations are adequate to prevent in-

justice to individuals within that field still open to judicial discretion, their im-
pact is entirely negative and does not ensure the development of a rational
body of criminal law.
The fundamental question is whether the undoubted advantages to be
found in maintaining a common law system of crimes as a substratum to
statutory coverage outweigh those of preempting the entire criminal law field
with a code. The most obvious argument favoring the retention of common
law is that, in its breadth, it effectively precludes the possibility of those
lacunae which must appear to some extent in even the best code.34 The
existence of such lacunae is said to constitute a threat to the public security,35
and, moreover, to do violence to that retributive instinct of society which
Holmes once called "... a felt necessity that punishment should follow
wrongdoing."36 Supporting arguments are that today the operation of the
common law is so restricted to the field of petty offenses as not to be suffi-
ciently important to merit legislative treatment;37 and that within this field
history has shown the.common law technique to be adequate.38 These sup-
porting contentions can hardly be sustained when it is realized that just
within the last half century, especially in the fields of labor law and trade
regulation, the judiciary proved unable to cope with the complexities of a
growing industrialism without the aid of legislation.39 Common law concepts
of conspiracy, forestalling, regrating and engrossing were inadequate tools
with which to fashion solutions to complex problems raised by strikes, boy-
cotts, monopoly and price-fixing.40 Nor can the misdemeanor field be dis-
missed as quantitatively insignificant in criminal law;41 offenses of a petty

(Jehovah's witness constitutionally protected from indictment for disturbing the peace,
when the offense consisted of expressing religious views).
34. BISHOP,CRIMINAL LAW??35, 37 and note (9th ed. 1923); Smith v. State, 12
Ohio St. 466, 474 (1861).
35. "It is impossible to find precedentsfor all offenses. The malicious ingenuity of
mankind is constantly producing new inventions in the art of disturbing their neighbors.
To this invention must be opposed general principles...."; Commonwealthv. Taylor,
5 Binn. 276, 281 (Pa. 1812).
36. HOLMES,THE COMMONLAW 42 (1881).
37. Note, Judicial Power to Find Common Laz Crimes in Wisconsin, [1939] Wis.
L. REV. 300, 308.
38. See generally STORY,REPORTTO His EXCELLENCY, GOVERNOROF THE COMMON-
WEALTH OF MASSACHUSETTS (1836) reprinted in CODIFICATION OF THE COMMON LAW,
LETTEROF JEREMYBENTHAM AND REPORTOF JUDGESSTORY,METCALFAND OTHERS25
(1882).
39. "[T]he common law, built up under simpler conditions of living, gave an inade-
quate basis for the adjustment of the complex relations of the modern factory system."
Brandeis, quoted in MASON, BRANDEIS-A FREE MAN'S LIFE 87 (1946).
40. Aden, Criminal Conspiracy in Restraint of Trade at Common Law, 23 HARV. L.
REv. 531 (1909).
41. New York City police department statistics show that as high as ninety-nine
percent of all arrestees are charged with misdemeanors: 1946 WORLDALMANAC749.

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 NOTES 1337

character occupy a substantial part of the time of even the superior state
courts.42
As to the lacunae, it is questionable whether the danger therein is so
substantial as to counterbalance that popular sense of fairness expressed in
the maxim nullum crimen sine lege.43 This attitude-that every criminal
shall have "fair warning . . . of what the law intends to do if a certain line
is passed"44-is also reflected in the constitutional prohibition of indefinite-
ness in penal statutes.45 Nor is it at all certain that the putative dangers of
lacunae are more immediate than those of arbitrary and unequal administra-
tion inherent in unfettered discretion.46
The modern approach to the problem of crime differs radically from
that of the common law. Absent a statute, only that conduct was criminal
at common law which the courts deemed inalunt in se-offensive to the law
of nature-inherently and essentially evil.47 The modern attitude, on the
other hand, demands a logical rather than a theological approach, with the em-
phasis not on the intrinsic quality of conduct but rather on its social conse-
quences.48 To confess that there do remain elements of the traditional atti-
tude, ascribed to the retributive instinct of society,49 does not deny the shift
in emphasis. It only adds one factor more to be considered in determining
the criminality of a behavior: the effects that the determination will have on
the emotions of society.50 Under this rationale, the common law technique,
handicapped by natural law concepts and ancient precedents of doubtful
utility in the solution of twentieth century problems, seems ill-equipped to de-
velop a rational system of criminal law suited to today's needs.51 And in
view of the broad impact and significance of the "petty offense" field, such a
system must include the entire field of misdemeanor as well as that of major
crime.
It is not suggested that codification is an immediate remedy for all the
ills of the present system of criminal law; but if not a cure-all, it is neverthe-
less by nature less susceptible to inequalities, and better adapted to the ends
of modern criminal jurisprudence than a system which leaves a substantial
part of the whole to the uncertainties and anachronisms of common law.
42. UnitedStates Dept. of Commerce,Bureauof the Census,JudicialCriminalSta-
tistics, 1942tables4 (1944).
43. See generallyGlaser,NullumCrimenSine Lege, 24 J. COMP. LEG.& INT. L. 28
(3d Series 1942); Hall, op. cit. supranote 32.
44. Holmes,J., in McBoylev. UnitedStates,283 U.S. 25, 27 (1930).
45. E.g., Lanzettav. New Jersey,306 U.S. 454 (1939); United States v. L. Cohen
GroceryCo. 255 U.S. 81 (1921). But see United States v. Ragen,314 U.S. 513, 523
(1942).
46. See Jackson,CommonLaw Misdemeanors, 6 CAMB.L. J. 193,200 (1937).
47. 1 BLACKSTONE, COMMENTARIES ? 54, 55 (1765).
48. Hall, Prolegomenato a Science of CriminalLaw, 89 U. OFPA. L. REV.549
(1941); MICHAELANDADLER,CRIME,LAW AND SOCIALSCIENCE352 et seq. (1933).
49. Supra,page1336.
50. MICHAELAND ADLER,op. cit. supra note 48.
51. See Hall, op. cit. supranote 48 at 563 et seq.

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