People v. Chapman

80 Mich. App. 583 (1978) 264 N.W.2d 69

PEOPLE
v.
CHAPMAN

Docket No. 77-617.

Michigan Court of Appeals.

Decided January 5, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.

Before: J.H. GILLIS, P.J., and BASHARA and H.L. HEADING,^[*] JJ.

H.L. HEADING, J.

Defendant was charged with inciting, inducing or exhorting another to commit murder, MCLA 750.157b; MSA 28.354(2). At his preliminary examination, the magistrate refused to bind defendant over for trial, on grounds that the prosecution was required to establish, as part of the corpus deliciti, that a murder had actually occurred. The prosecutor appealed this decision in Circuit Court for Jackson County, which reversed. On remand, defendant was bound over for trial as charged.

Prior to trial, a second count of inciting, inducing or exhorting another to commit felonious assault, MCLA 750.157b; MSA 28.354(2), was added to the information, and defendant pled guilty to that offense. Defendant was sentenced to a term of two years, eight months to four years imprisonment. He appeals as of right, alleging inter alia that the statute under which he was charged is void for vagueness and overbreadth.

Testimony at the preliminary examination tended to show that defendant accompanied one Kyle Anderson and two others to a certain location, where they asked to see "Tom". As Thomas Matthias approached the automobile in which defendant and his companions were sitting, defendant handed a shotgun to Anderson, saying, "Shoot him. Blow him up." Anderson apparently complied, and Matthias suffered wounds which ultimately caused his death.

The statute under which defendant was charged provides:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted."

Defendant first contends that the statute is void for vagueness under the Due Process Clause, US Const, Am XIV, because the terms "incites, induces or exhorts" do not define with sufficient clarity the conduct proscribed, and have a chilling effect on his First Amendment freedom of speech. We do not agree.

Laws must define prohibited conduct with sufficient specificity to give persons of ordinary intelligence reasonable notice of what is prohibited, to provide standards for enforcement and, where First Amendment freedoms are involved, to avoid an unnecessary chilling effect. Grayned v City of Rockford, 408 U.S. 104; 92 S. Ct. 2294; 33 L. Ed. 2d 222 (1972), People v Dempster, 396 Mich. 700; 242 NW2d 381 (1976). Given the inherent limitations of language, however, courts do not demand mathematical precision, but only reasonable certainty. Grayned, supra, Kalita v Detroit, 57 Mich. App. 696; 226 NW2d 699 (1975), lv den 394 Mich. 810 (1975).

The three terms used in the statute to describe the prohibited conduct are given similar definitions by Webster's New World Dictionary, 2d Ed (Collins & World Publishing Co, Inc, 1974).^[1] A fair reading of the definitions is that the terms "incite, induce or exhort" are essentially synonymous, and refer to conduct intended to bring about action on the part of another person. Cf. People v O'Neal, 22 Mich. App. 432; 177 NW2d 636 (1970).

We think that the statute as written sufficiently informs a potential defendant that he is to refrain from conduct calculated to cause another person to commit an offense described in the statute. MCLA 750.157b; MSA 28.354(2) is not unconstitutionally vague.

Defendant next contends that the challenged statute is void because it is overly broad, prohibiting speech protected by the First Amendment as well as speech which may properly be regulated.

It is well-established that one to whom a statute may constitutionally be applied may not challenge that statute on grounds of overbreadth, Broadrick v Oklahoma, 413 U.S. 601; 93 S. Ct. 2908; 37 L. Ed. 2d 830 (1973). In the area of First Amendment rights, however, the rule has been relaxed to permit challenges to overly-broad statutes by persons whose conduct would have been prohibited even by a narrowly-drawn statute, in order to provide the "breathing space" which the First Amendment requires, Broadrick, supra, Dombrowski v Pfister, 380 U.S. 479; 85 S. Ct. 1116; 14 L. Ed. 2d 22 (1965), Sponick v Detroit Police Department, 49 Mich. App. 162; 211 NW2d 674 (1973). We need not expand upon the question of defendant's standing to raise the overbreadth issue, however, because we find the statute to be within constitutional limits.

Defendant contends that the statute under which he was charged cannot stand under the rule of Brandenburg v Ohio, 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969). The Court in Brandenburg, 395 U.S. 444, 447-448, said:

"[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v United States, 367 U.S. 290, 297-298 [81 S. Ct. 1517; 6 L. Ed. 2d 836] (1961), ``the mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v Lowry, 301 U.S. 242, 259-261 [57 S. Ct. 732; 81 L Ed 1066] (1937); Bond v Floyd, 385 U.S. 116, 134 [87 S. Ct. 339, 17 L. Ed. 2d 235] (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments." (Footnote omitted. Emphasis supplied.)

The Ohio statute struck down in Brandenburg, supra, by its terms prohibited mere teaching or advocacy of the use of violence for political ends. The Michigan statute challenged here is limited to inciting, inducing or exhorting criminal acts. Defendant contends, however, that our statute lacks the requirement of imminence imposed by Brandenburg. We disagree. The terms used in the statute clearly indicate that it is intended to prohibit only the sort of call to action which the Supreme Court in Brandenburg distinguished from mere advocacy. The words "incite, induce or exhort" themselves imply imminence of action. The natural and expected result of incitement, inducement or exhortation is action by the person incited, induced or exhorted. Merely teaching or advocating the necessity of lawlessness, without urging immediate acts of lawlessness, would not fall within the terms of the statute and could not be punished thereunder. It is only conduct such as defendant's — urging the immediate commission of a dangerous felony or misdemeanor — which constitutes inciting, inducing or exhorting and is prohibited by MCLA 750.157b; MSA 28.354(2). Brandenburg v Ohio, supra, does not invalidate a narrowly-drawn statute such as the one before us, which proscribes only speech which is clearly within the power of the state to regulate, Hess v Indiana, 414 U.S. 105; 94 S. Ct. 326; 38 L. Ed. 2d 303 (1973).

Defendant's final claim is that he was improperly bound over. He contends that there was insufficient evidence of the element of intent to bind him over, and that the trial court made no finding of probable cause. We have reviewed the record and conclude that there was sufficient evidence to establish the element of intent. We also find that the testimony at the preliminary examination showed that there was probable cause to charge defendant with the offense. Although, for purposes of clarity, it would be better for the magistrate to make an express finding of probable cause, no such specific finding is required by the applicable statute, MCLA 766.13; MSA 28.931.

Affirmed.

NOTES

[*] Detroit Recorder's Court judge, sitting on the Court of Appeals by assignment.

[1] Incite: "to urge to action; stir up; rouse" (p 710). Induce: "to lead on to some action * * *; prevail on; persuade" (p 718). Exhort: "to urge earnestly by advice, warning, etc." (p 491).