Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law. Any act is indictable at common law which from its nature scandalously affects the morals or health of the community.
Defendant used a four-party line to make numerous telephone calls to a woman, a stranger to him, as often as three times a week, at any hour of the day or night, for a period of over a month. His language on the calls was obscene, lewd and filthy. He suggested intercourse and talked of sodomy. As a result, several indictments charged Defendant for making the said harassing telephone calls. The indictments in these cases did not charge an offense punishable by the Penal Code or any statutory law. Nonetheless, the Court of Quarter Sessions of Allegheny County (Pennsylvania) convicted the Defendant of a common law offense termed “Immoral Practices and Conduct”. On appeal, the court held that the indictment's factual charges identified the offense as a common law misdemeanor. In Pennsylvania, the common law of England as to crimes was in force except in so far as it had been abrogated by statute.
Can an act, though not punishable under any statute, be punished under common law?
There was no statute addressing defendant's conduct. It did not matter that there was no precedent for the crime because the test was whether the alleged crime could have been prosecuted and punished under common law. Defendant's conduct was a crime because it openly outraged decency and was injurious to public morals. Although endeavoring to persuade a married woman to commit adultery was not indictable, defendant's conduct evidenced a criminal intent beyond the mere solicitation of adultery. The telephone operator, or anyone on defendant's four-party telephone line, could have listened in on the conversations and heard the obscene comments.