State v. Pulle

By the Court "Wilson, Oh. J. The common law so far as it is applicable to our situation and government, is, as a general rule, the law of this country. .Every State, with perhaps one exception, has adopted it, either tacitly or by express statutory enactment. See 1 Kent's Commentaries, 170-3, note and cases in note. That it is the law of this State, controlling both the rights and the remedies of parties in actions [171] between individuals, either on a contract or for a tort, cannot be doubted, for the courts have recognized and acted on this fact ever since the organization of our territorial government, and we find no evidence which satisfies us that either the State or territory intended to repudiate the common law as a source of jurisdiction in either criminal or civil cases. It having been adopted in civil cases, the presumption certainly is that it was adopted as an entirety, so far as it is not inconsistent with our circumstances, or statutory or constitutional law. Nor do the laws in force in Wisconsin territory at the date of the admission of the State of Wisconsin, (which, by our organic act were declared to be valid and operative in Minnesota territory,) rebut this presumption. There is nothing in these laws which shows that the territory of Wisconsin abrogated or repealed the common law as to crimes, but on the contrary, we think they show that it was recognized and adopted in that territory. That our statutes expressly abolish common law offenses, is not pretended. A statute which is clearly repugnant to the common law must be held as repealing it, for the last expression of the legislative will must prevail. Or we may admit, for the purposes of this case that when a new statute covers the whole ground occupied by a previous one, or by the common law, it repeals, by implication, the prior law, though there is no repugnancy. Beyond this the authorities do not go in sustaining a repeal of the common law by implication. On the contrary, it is well settled that where a statute does not especially repeal or cover the whole ground occupied by the common law it repeals it only when, and so far as di/rectkj and irreconcilably opposed in terms. See 1 Bish. Cr. Law, 3d ed., sec. 195 to 200, and cases cited in notes to said sections. Our statutes fall far short of covering the whole field of common law crimes. It is not pretended that conspiracy is, [172] by them, made a crime, and we think it very clear that libel is not, and many other instances might be added. We think, therefore, that they do not' by implication, abolish these crimes. But further than -this, we think our statutes clearly recognize the existence of common law offenses. Sec. 2, chapter 87, Comp. Stat., reads as follows: * * * * “ Crimes and public offenses and criminal proceedings are modified as prescribed in these statutes.” The Revised Statutes were adopted in 1851, and the language above quoted was added as an amendment in 1852. It is perhaps true that this amendment did not change the meaning of the statutes, but legislators frequently, and properly make use of language, which, strictly speaking, is unnecessary, out of abundant caution, and for the purpose of making clear what otherwise might, in the minds of some, admit of doubt. We think, in this view, the legislature must have used the language above quoted, to show that our statutes, as to crimes, were intended merely as a modification, and not as an entire repeal, or abrogation of the common law. This seems to us the fair and natural meaning of the language, and any other construction suggested seems forced and unauthorized. Section 34 of chap. 90 of said statutes reads: “ Every person who shall be convicted of any gross fraud or cheat, at common law, shall be punished,” &c. ' Sec. 5, chap. 98, ib., reads : “ Every person who shall become an accessory after the fact, to any felony, either by common law, or by any statute made, or which shall'hereafter be made, may be indicted,” &c. Our statutes, in no place, declare that any act shall constitute the crime of libel, or that such crime shall be punished, yet they provide as to what evidence may be given, and as to the form and substance of the indictment in prosecutions for such crime. Comp. Stat. 734, sec. 6; ib. 756, sec. 3; ib. 760, sec. 17. These sections are an admission, or recognition by the [173] Legislature of the fact tliat common law offenses may be punished in this State. This conclusion is in accordance with the views entertained by the courts generally throughout the United States. See authorities cited in note to Section 36, 1 Bishop, Cr. Law, 3d ed. Ohio seems to be an exception to this general rule, but we have carefully examined the statutes of that State, and do not find that they, like our statutes, recognize the existence of common law offenses. The cases cited from that State can, therefore, not be held as opposed to the decision arrived at in this case. The case of Estes vs. Carter, 10 Iowa, 400, holds, that no common law offense not recognized by the criminal statutes of that State will bo treated or punished as a crime by the courts. The decision is based on two grounds; 1st, the peculiar wording of the Constitution of that State ; and, 2d, that the statutory offenses so nearly cover all the common law offenses, that it is reasonable to infer that those which were omitted were intended to be excluded. If the statutes of that State, to which we have not had access, are similar to ours, we cannot admit that the second ground on which the decision is based, is tenable, for it is certainly a well settled rule, that statutes are not to be construed as repealing the common law beyond their words, or the clear expression of their provisions. Beyond this, no admitted rule of interpretation permits us to presume an intention to repeal. See authorities above cited. There is a remark made by the court in the case of Benson vs. State, 5 Minn., 21, which the counsel for the defendant refers to in support of his view, but the point was not considered or decided by the court in that case. This remark deserves, and has received, the consideration due to the views of the learned judge who delivered that opinion. Whether it would be wise for the legislature to repeal the common law as [174] a source of jurisdiction in criminal matters, it is not for us to determine. If common law crimes are suspended or abolished by our statutes, so are “criminal proceedingsbut the legislature, by the express and particular repeal of certain criminal practice and proceedings, (Comp. Stat., p. 735, sec. 14; ib., p. 785. sec. 37,) clearly indicated that they did not consider the general statute as affecting such repeal. The gist of this offense is the unlawful confederation, and it is not necessary to prove an overt act in pursuance of it. Commonwealth vs. Judd, 2 Mass., 329. The exceptions are overruled.