12 Minn. 164 | Minn. | 1866
Lead Opinion
By the Court
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
Our statutes fall far short of covering the whole field of common law crimes. It is not pretended that conspiracy is,
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
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.
Dissenting Opinion
I dissent. In my judgment no offenses at common law are offenses in this State, except such as are specifically recognized by our statutes.