PEOPLE
v.
MASTEN
PEOPLE
v.
MABRY
Docket Nos. 65688, 66414.
Supreme Court of Michigan.
Decided August 9, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
Jeffrey S. Masten in propria persona.
Murphy, Burns & McInerney, P.C. (by Peter P. Walsh), for defendant Mabry.
PER CURIAM:
These cases raise identical questions regarding interpretation of MCL 750.338; MSA 28.570. At issue is whether a defendant may be convicted of attempting to procure the commission of an act of gross indecency when the act proposed would be between the defendant and another person. We conclude the statute does not apply in such circumstances.
I
In each of these cases there was evidence that the male defendants suggested to other men that the defendant would be willing to perform certain sexual acts with them, in one case for money. No sexual activities took place.[1] Each was convicted of attempting to procure the commission of an act of gross indecency under MCL 750.338; MSA 28.570:
*18 "Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years * * *." (Emphasis added.)
In Masten, the Court of Appeals affirmed the conviction, the majority citing People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), as implicitly holding that "the term `procure' is not limited to situations in which one person attempts to induce an illegal act involving two or more other persons". People v Masten, 96 Mich App 127, 133, fn 7; 292 NW2d 171 (1980). Judge BRONSON dissented, concluding:
"It is apparent that the ordinary use of the word `procure' in the context of sexual activity means the facilitation of sexual activity between two other individuals." 96 Mich App 139.
The defendant filed a request for review of his conviction under Administrative Order 1977-4, 400 Mich lxvii, and we ordered the prosecutor to show cause why the conviction should not be reversed for the reasons set forth in Judge BRONSON'S dissent and by the Court of Appeals panel in People v Mabry, 102 Mich App 336; 301 NW2d 528 (1980). The prosecutor has filed a written response.
In Mabry, the Court of Appeals reversed, expressing agreement with Judge BRONSON'S analysis, and reasoning that the offense charged here is distinguished from solicitation[2] because the latter *19 applies to two-party transactions while attempting to procure the commission of an act of gross indecency requires that the proposed sexual activity be between two persons other than the defendant. The prosecutor has filed a delayed application for leave to appeal.
II
We agree with the Court of Appeals in Mabry and Judge BRONSON'S dissent in Masten that the part of the statute referring to one who "procures or attempts to procure" an act of gross indecency is meant to apply to situations in which the defendant facilitates or attempts to facilitate the commission of an act of gross indecency by two other persons. This is simply the more sensible reading of the section. It is meant to proscribe two kinds of conduct: committing gross indecency and bringing about gross indecency. If "procure" is read to include bringing about such acts involving oneself, it adds nothing, since the actor will also have committed the act of gross indecency. Such a reading would have the anomalous result of subjecting those who commit or procure (for themselves) an act of gross indecency to the same five-year penalty, but, if there is only an attempt, one who attempts to commit the act can be sentenced to no more than two and one-half years,[3] while one who attempts to procure (for himself) such an act can be sentenced to five years. If procuring is limited to three-party transactions this sentencing provision is rational. The conduct of one who attempts to procure such an act between others is *20 not made either more or less culpable by the fortuitous circumstance that the other parties commit or do not commit the act of gross indecency.
We are not persuaded by the cases on which the prosecutor relies. Although People v Dexter, supra, involved a conviction for procuring an act of gross indecency in which the defendant was a participant, the issue was not raised or discussed in the opinion. While People v Carey, 217 Mich 601; 187 NW 261 (1922), apparently rejected an argument like that raised here, it did so without either explicitly explaining or, indeed, explicitly stating the issue.[4] For the reasons stated above, we disagree with its conclusion.
Accordingly, in Masten the request for review is treated as an application for leave to appeal. Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we affirm the judgment of the Court of Appeals in Mabry and reverse the defendant's conviction in Masten.
COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.
NOTES
[1] In Masten the men to whom the defendant made the offer were police officers. In Mabry the man approached was a school security guard. In each case the defendant was promptly arrested.
[2] MCL 750.448; MSA 28.703:
"Any person, male or female, 17 years of age or older, who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor."
[3] MCL 750.92; MSA 28.287. See People v Loveday, 390 Mich 711, 713-715; 212 NW2d 708 (1973).
[4] Carey says only:
"The information charged the procurement of the commission of the offense. This is criticized. It is sufficient to say that the evidence would support a charge of committing or of procuring to commit." 217 Mich 603-604.