Commonwealth v. Mochan

Facts

Over a period of more than one month early in 1953, Mochan telephoned Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week, at any hour of the day or night. His language was obscene, lewd and filthy. He suggested intercourse with her and, on a number of occasions, talked of sodomy in the loathsome language of that act. The calls came in over a four-party line. With the telephone company's help, the police located Mochan and arrested him at the telephone after his last call. Mrs. Zivkovich later recognized his voice in a telephone conversation the police set up. The operator or anyone on the four-party line could have listened in, and at least two other persons in her household heard some of his language. No statute made this conduct a crime in Pennsylvania. The indictments charged that he meant to debauch the morals of the Commonwealth's citizens and to harass and vilify Mrs. Zivkovich and her family. The District Attorney endorsed the offense on them as "Immoral Practices and Conduct."

Issues

1. Is repeatedly telephoning a stranger, a married woman, and using obscene and lewd language to her a misdemeanor at common law in Pennsylvania, even though no statute makes it a crime?
2. Can a Pennsylvania court punish conduct as a common law misdemeanor when no earlier decision involves the precise question?

Holding

Mochan's repeated obscene telephone calls to a stranger were a common law misdemeanor. They went beyond mere solicitation of adultery, and, potentially at least, they injuriously affected public morality. The convictions on both indictments were affirmed.