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01/27/76 PEOPLE v. HOWELL PEOPLE V. HELZER

January 27, 1976

PEOPLE
v.
HOWELL; PEOPLE V. HELZER



Levin, J. Kavanagh, C. J., and Williams, J., concurred with Levin, J. The undersigned concur in this opinion with the exception of section II: Coleman and Fitzgerald, JJ.; Lindemer, J., as to Helzer only. Ryan, J., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. -- Due Process -- Statutes -- Vagueness.

A criminal statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; (3) its coverage is overbroad and impinges on First Amendment freedoms.

2. Constitutional Law -- Due Process -- Statutes -- Vagueness.

Challenges to statutes which do not involve First Amendment freedoms on the grounds of vagueness must be examined in the light of the facts of the case at hand.

3. -- Gross Indecency -- Due Process -- Vagueness.

The term "act of gross indecency" standing alone in the criminal statutes fails to give adequate notice of the conduct proscribed, but courts have long applied statutes concerning gross indecency to acts of forced fellatio and fellatio with a minor, and defendants charged with assault with intent to commit gross indecency on proof of forced fellatio and with committing an act of gross indecency on proof of fellatio with a minor cannot be heard to say that they were not forewarned that such conduct was subject to prosecution under the statutes (MCL 750.85, 750.338; MSA 28.280, 28.570).

4. -- Gross Indecency -- Statutes -- Due Process -- Vagueness -- Common Sense of Society.

The construction of statutes concerning gross indecency to prohibit conduct that the common sense of society regards as indecent or improper should be rejected; there being no common sense of society regarding sexual behavior between consenting adults in private, that test leaves the trier of fact free to decide without any legally fixed standards what is prohibited and what is not in each particular case (MCL 750.85, 750.338; MSA 28.280, 28.570).

5. -- Gross Indecency -- Statutes -- Construction.

The term "act of gross indecency" used in criminal statutes should be construed to mean oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public (MCL 780.85, 750.338; MSA 28.280, 28.570).

6. -- Gross Indecency -- Instructions to Jury.

A defendant cannot complain that a jury in a trial for gross indecency was instructed to determine whether the common sense of society would regard his conduct to be improper or indecent where the instruction given was minimally adequate to inform the jury that conviction was proper only if it found that the defendant had committed the oral or manual sexual acts related in the testimony and where the standard applied to the defendant has been uniformly applied.

7. -- Witnesses -- Failure to Indorse.

Failure of the prosecution to indorse and call res gestae witnesses does not require reversal of a defendant's conviction where the failure was apparent to defense counsel who listed one of the witnesses as an alibi witness but did not call him to testify.

8. -- Instructions to Jury -- Time of Offense -- Gross Indecency.

A defendant is entitled to an instruction confining the jury to the time, date or period of the offense established by the evidence without regard to whether an alibi has been interposed; failure expressly to confine the jury in a trial for gross indecency to the time of the act charged does not require reversal of the defendant's conviction where only a single incident was alleged and shown between the defendant and the complaining witness, who was a child, and they had met each other for the first time only a few days before the incident, because under these circumstances the failure could not have resulted in conviction for another act (MCL 750.338; MSA 28.570).

The opinion of the court was delivered by: Levin

Michael Howell was charged with assault with intent to commit the crime of gross indecency, by committing forced fellatio, in violation of MCL 750.85; MSA 28.280. Defendant's motion to dismiss on the grounds that the statute under which he was charged is unconstitutionally vague was denied in the Recorder's Court of Detroit, Susan Borman, J., but a stay of proceedings was granted to allow the defendant to seek interlocutory relief. The Court of Appeals, Lesinski, P. J., and J. H. Gillis and O'Hara, JJ., denied leave to appeal (Docket No. 18933).

Richard Helzer was convicted by a jury in Presque Isle Circuit Court, Philip J. Glennie, J., of gross indecency between male persons on proof of fellatio with a minor. MCL 750.338; MSA 28.570. The Court of Appeals, Danhof, P. J., and Quinn, J. (V. J. Brennan, J., Dissenting), reversed and remanded for a new trial (Docket No. 15180). The people appeal. Held:

1. Challenges on the grounds of vagueness to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. While the term "act of gross indecency" standing alone fails to give adequate notice of the conduct prescribed, the statutes have long been applied in the courts to acts of forced fellatio ...


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