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State v. Biechele10/21/2005
he statute to apply for and receive a permit for the possession and display of pyrotechnics.
Nature of Duty Unaffected by Members in the Community
Other individuals' failure to follow the statute's mandate does not change the defendant's duty under the statute. Rather, such pervasive non-compliance might lead to the conclusion that many pyrotechnic users were not acting as prescribed by statute. It is well settled that
" hen a person engages in conduct which constitutes a crime, it is no less a crime because it is customary for other persons in the neighborhood to engage in the same conduct. It matter not that the custom may have existed in the community over a long period of years..An existing crime remains in force until repealed; therefore, an offender may be prosecuted there under even though over a period of many years no one else has been prosecuted. 1 Wharton's Criminal Law ยง 50 (15th ed.).
It is axiomatic that the culpability of Defendant's actions or inactions were in no way affected by others acting or failing to act in a similar manner. Therefore, the results of the request, if granted, could not bolster the Defendant's defense in this matter.
The Court also notes the burdensome nature of the request. The Court is mindful that the State and local government communities have limited resources which should not be expended to satisfy subpoena requests that the Court has determined fail to meet the legal standards required to authorize the issuance of the 17(c) subpoenas.
CONCLUSION
For the foregoing reasons, the Court denies the Defendant's motion to issue subpoenas prior to trial.
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