State v. Pulle

• Decision Date: 01 January 1867
• Citation: 12 Minn. 99
• Parties: STATE OF MINNESOTA v. FRANK PULLE and others.
• Court: Minnesota Supreme Court

Page 99

12 Minn. 99

STATE OF MINNESOTAv.

FRANK PULLE and others.

Supreme Court of Minnesota.

Certified up from the district court, Ramsey county.

The defendant, with many others, was indicted for conspiracy to commit an assault. He demurred to the complaint, on the grounds substantially —

(1) There is no statute of this state creating, defining, or punishing conspiracy as a crime.

(2) There are no common-law offences in this state.

(3) No act pursuant to the conspiracy is charged.

The demurrer was overruled.

Gorman & Davis, for appellant.

S. M. Flint and Jas. Gilfillan, for respondent.

WILSON, C. 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, Comm. 470-3, note and cases in note. That it is the law of this state, controlling both the rights and the remedies of parties in actions 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 There is nothing in these laws which shows that the territory of Wisconsin abrogated or repealed the common law as to crimes; but, on the contrary, we think they show that it was recognized and adopted in that territory.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 offences 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 directly and irreconcilably opposed in terms. See 1 Bish. Crim. Law, (3d Ed.) §§ 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 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 offences. Section 2 c. 87, Comp. St., reads as follows: * * * "Crimes and public offences 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 chapter 90 of said statutes reads: "Every person who...