People v. Haggerty , 27 Mich. App. 594 ( 1970 )

27 Mich. App. 594 (1970) 183 N.W.2d 862

PEOPLE
v.
HAGGERTY

Docket No. 8,233.

Michigan Court of Appeals.

Decided October 29, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

William J. Hayes, for defendant on appeal.

Before: LESINSKI, C.J., and V.J. BRENNAN and O'HARA,^[*] JJ.

O'HARA, J.

On December 27, 1968, an information was filed charging defendant with committing an act of gross indecency, MCLA § 750.338 (Stat Ann 1954 Rev § 28.570). Upon jury trial, defendant was found guilty and was sentenced.

On appeal defendant contends that the information under which he was charged was too vague to constitute sufficient notice and that confinement in a state prison for a homosexual offense is cruel and unusual punishment. This issue as to the sufficiency of the information was raised in People v. Dexter (1967), 6 Mich App 247, in which this Court held that this section was not vague. Dexter and its precedent Supreme Court authority is dispositive of this issue here.

Furthermore, defendant made no timely objection below to the information and such failure waives any alleged error. MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016).

As for defendant's second contention, this Court will not interfere with a trial court's sentence when that sentence is within the statutory limits as prescribed by the legislature. People v. Cunningham (1970), 21 Mich App 381.

We deem it advisable to comment upon the brief-presented argument by defendant that the rule in Dexter, supra, which rests upon the earlier holding in People v. Hicks (1893), 98 Mich 86, is outdated.

The thrust of the argument is that the "puritanical notion" that "the indelicacy of the subject" forbids specific description of the acts constituting gross indecency has been vitiated by a more enlightened view of homosexuality, particularly as to relations between consenting adults. He argues further that terms which at the time of the Hicks decision (1893) were offensive to "community standards" are now in fact accepted terminology in the general community vocabulary.

We cannot deny that what in by-gone years was mentioned in hushed tones or communicated in vague euphemisms is now openly discussed. Conduct that was once described as "an abominable and detestable crime against nature" has become the subject of extensive medical, psychiatric, and sociological research. Homosexuality has become the subject matter of serious and learned articles in scholarly publications. There may very well be sound reasons for a total re-examination of the whole concept of its criminality.

Whatever our personal views may or may not be, our judicial function as an intermediate appellate court is limited. In a case of first impression we may properly address ourselves to the constitutionality of statutes, and this includes constitutional infirmity for lack of specificity in the description of an offense. Where the Supreme Court has spoken, as here, we are not free to disregard its precedent. Distinguish we can, overrule we cannot. We cannot distinguish the prior holdings nor can we overrule them in the case at bar.

Defendant's argument must be directed to the legislature or the court of ultimate jurisdiction. Within our scope of review we must of necessity affirm.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.