In this thread I wrongly claimed that there were no common law crimes in the US.
I had thought that they were unconstitutional under the fair warning or void-for-vagueness doctrine.
But I found other cases that seemed to demonstrate that common law crimes are still alive and kicking.
For instance, in researching the issue, I discovered this gem:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=195 (invalidating Kentucky’s common law crime of libel under the First Amendment).
What’s more, my own state apparently recognizes them. :smack:
750.505 Punishment for indictable common law offenses.
Sec. 505.
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
http://www.courts.michigan.gov/supremecourt/Clerk/Opinions-02-03/perkins-120453.PDF (applying the statute to a charge of common-law misconduct in office).
**Here is my question: How many states actually prosecute common law crimes and what crimes do they prosecute? **
I’m not as interested in the related “common-law crime” cases, where a court ads a judicial gloss to a criminal statute, or gives a common law definition to a term that is not defined in the statute.
*E.g., * http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-6218 (judicial abolition of common-law year and a day rule for murder does not offend the Ex Post Facto clause or the Due Process clause; reviewing cases involving limits on retroactive application of judicial decisions in criminal cases)
I found this:
In 1955, when the American Law Institute published its proposed Model Penal Code, it recommended abrogation of common-law crimes. Because much of the common law was adopted hundreds of years ago and under extremely different social situations, and because it is unwritten, this places a strange burden on individuals to know whether their acts or omissions are legal so that they don’t violate unwritten laws.
Prior to the Model Penal Code’s publication, common-law crimes either had been abrogated by statute or court decision (mostly in the 19th century) or determined never to have been recognized in a total of 29 jurisdictions. The East and the South disproportionately were the regions recognizing common-law crimes, because they had the most direct English influence. The Midwest traditionally has been the region of the country most hostile to recognition of common-law crimes.
Since the Model Penal Code was published, the number of jurisdictions abrogating common-law crimes has grown to 42, leaving only 13 states and the District of Columbia recognizing them All but four of these holdouts are in the East and the South.
http://www.sodomylaws.org/sensibilities/commonlaw.htm (footnotes omitted)
The site claims that these are the remaining common-law crime jurisdictions:
District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, Rhode Island, South Carolina, Vermont, Virginia, Washington, and West Virginia.
So that answers (website credibility issues aside) one of my questions.
mks57
May 28, 2005, 10:22pm
3
According to several web pages that I’ve read, as a citizen of Maryland, I can choose “trial by combat” under the State’s common law.
That would make Court TV much more interesting.
mks57:
According to several web pages that I’ve read, as a citizen of Maryland, I can choose “trial by combat” under the State’s common law.
That would make Court TV much more interesting.
A somewhat weak claim based on Ashford v. Thornton (1818) (English case holding that trial by battle was still an available remedy because Parliament had not abolished it) and this statute which imported English common law as of July 4, 1776. The idea being, when Maryland adopted English common law, trial by battle was still available.