Note: I wrote this during my salad days as a legal humorist. It first appeared on Bitter Lawyer, which amazingly has lately been banned by Facebook.
Occasionally we blow the dust off our law books and take a look at old crimes and misdemeanors to see how various laws and cases hold up today. Generally, the older laws are either not being used or, if they are, continue to maintain an air of the Old West. Or the King’s Bench. Today, we look at mischief, mayhem, and three others that have dubious current value.
Criminal Mischief
Yes, mischief has been criminalized. But we’re not talking about leaving a burning bag of shit on a doorstep after ringing the neighbor’s doorbell. Or putting a Herman Cain lawn sign on someone’s yard. Actually, yes, we are. Those may be criminal mischief in some degree. Criminal mischief is generally defined as intentionally damaging or defacing the property of another person without the other person’s consent. And there are degrees of mischief, as in New York. Criminal mischief in the first degree is defined as:
A person is guilty of criminal mischief in the first degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person by means of an explosive.
This statute just pops at the end. Famous criminal mischief conviction: JetBlue flight attendant Steven Slater, who quit his job by jumping down a plane’s emergency chute, later pled guilty to criminal mischief and attempted criminal mischief.
Mayhem
The likely criminal charge, if applicable, for King Arthur supplying mere flesh wounds to the black knight? Mayhem, which according to Wikipedia:
originally consisted of the intentional and wanton removal of a body part that would handicap a person’s ability to defend himself in combat. Under the strict common law definition, this required damage to an eye or a limb, while cutting off an ear or a nose was deemed not sufficiently disabling.
Mayhem later developed to include not just limbs but also lips, noses, tongues, and eyes. As with most criminal law statutes, though, there is simple mayhem. And then there is aggravated mayhem. Famous mayhem case: Fetter v. Beale, where in 1697 the King’s Bench expanded mayhem to include “loss of the skull.”
Nightwalking
With recent news of “real-life superheroes” getting arrested or in trouble, maybe we need to revisit the common law concept of arresting nightwalkers. Historically, as discussed by the Supreme Court in Atwater v. Lago Vista, night watchmen were empowered in London to arrest “any suspicious night-walker, and detain him till he give good account of himself.”
At least in Massachusetts, you can still be arrested and charged with being a “common nightwalker:”
Common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200. . . .
As discussed in a 1984 case from a Boston suburb, police arrested 102 women under the charge of common nightwalker in one month, more than twice the rate of those arrested for common prostitution. Then again, Massachusetts also criminalizes being a tramp and a vagabond.
Mopery
Mopery is a crime, or used to be. Or maybe not. If Occupy America continues, we imagine that authorities will dust off criminal law statutes and start charging people with mopery, including aggravated mopery. The only known instance (at least to us) of a jurisdiction charging people with mopery was Columbus, Ohio, which pursued hippies in the 1970’s with mopery charges, defined as “loitering while walking, or walking down the street with no clear destination or purpose.” Hmmm.
Blasphemy
Blasphemy is still a crime in some states, including Michigan, Oklahoma, South Carolina, Wyoming, and Pennsylvania. In the alleged liberal bastion of Massachusetts, it’s still a crime to blaspheme:
Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.
We can’t track down a recent conviction for blasphemy because, well, the U.S. Constitution has a thing about that. But it’s thought that Charles Lee Smith, who had a storefront in Arkansas with a sign in the window stating “Evolution Is True. The Bible’s a Lie. God’s a Ghost,” was the last person convicted of a crime generally defined as blasphemy. The crime may make a comeback, however, depending on whether Oral Roberts law grad Michele Bachmann does well in the Iowa caucuses.