People v. Shafou

• Citation: 330 N.W.2d 647,416 Mich. 113
• Decision Date: 01 January 1980
• Docket Number: Docket No. 62885
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant and Cross-Appellee, v. Khalid P. SHAFOU, Defendant-Appellee and Cross Appellant. ,
• Court: Supreme Court of Michigan

Page 647

330 N.W.2d 647

PEOPLE of the State of Michigan, Plaintiff-Appellant and Cross-Appellee, v. Khalid P. SHAFOU, Defendant-Appellee and Cross Appellant.

Docket No. 62885, Jan. Term, 1980.

Calendar No. 12.

416 Mich. 113, 330 N.W.2d 647

Supreme Court of Michigan.

Argued Jan. 10, 1980.

Decided Dec. 23, 1982.

William L. Cahalan, Pros. Atty., of Wayne County, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., Detroit, for plaintiff-appellant and cross-appellee.

Parzen & Parzen, Detroit, for defendant-appellee and cross-appellant; Edward Grebs, Detroit, of counsel.

FITZGERALD, Chief Justice.

Defendant was convicted by a jury of inciting, inducing, or exhorting another person to unlawfully burn property in violation of M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2). The Court of Appeals reversed defendant's conviction in an unpublished per curiam opinion, Judge Kaufman dissenting. We reverse the judgment of the Court of Appeals and reinstate defendant's conviction.

I

Defendant owned and operated a store in the City of Detroit. Defendant contacted an alleged arsonist and arranged to burn down a competitor's market which was located across the street from defendant's place of business. Unknown to defendant, the alleged arsonist was a police informant. Several telephone conversations between defendant and the informant were taped by police officers. Transcripts of these conversations were introduced at trial and admitted into evidence. This evidence showed that the defendant agreed to pay $1,000 for destruction of the building.

The day before the fire was to occur, defendant directed his brother to telephone the informant and tell him to "forget everything about the store". Defendant's brother contacted the informant as instructed. The informant agreed not to burn the store.

At trial, defendant's counsel requested an instruction that withdrawal constituted a defense to the crime charged. The court denied this request and instructed the jury as follows:

"Ladies and gentlemen of the jury, it is important that you keep in mind that the crime of inciting to burn real property is complete at the time the inciting, inducing or exhorting takes place. In other words, it is unnecessary that any overt act be done in furtherance of that which is incited, induced or exhorted. For example, in this case it is unnecessary to find that the market was actually ever burned or that any person or persons did any act as a result of the defendant's incitement, if any incitement actually occurred. * * * If you find that such an incitement, inducement or exhortation to burn had been made, [that] there had been a withdrawal is of no consequence, it's not a defense of the act." (Emphasis supplied.)

The jury convicted defendant of the crime charged.

The Court of Appeals held that no overt act by the informant need be proved for conviction of inciting, inducing or exhorting the burning of real property. However, the Court reversed defendant's conviction on the ground that the trial court erred in refusing to instruct the jury that withdrawal was a defense.

We granted leave to appeal and cross-appeal to resolve three questions: Does M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2) require proof of an overt act and that the third party was incited? Was it reversible error for the trial court to refuse to charge on attempt? Is withdrawal or abandonment a defense to the charge of inducing, inciting or exhorting another to unlawfully burn property under M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2)? 406 Mich. 1012 (1979). We answer these questions in the negative.

II

Defendant argues that proof of an overt act by the person sought to be incited is a necessary element of the crime of inciting, inducing or exhorting the burning of real property. It is our determination that no overt act by anyone other than the defendant is necessary to convict under this statute.

M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2) 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."

The Court of Appeals, in upholding the constitutionality of M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2), wrote:

"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 N.W.2d 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. MCL 750.157b; MSA 28.354(2) is not unconstitutionally vague." People v. Chapman, 80 Mich.App. 583, 586, 264 N.W.2d 69 (1978).

This language speaks only to the conduct of the defendant. We agree with this focus.

It is the defendant's inciting, inducing or exhorting which constitutes the culpable conduct. We do not think the Legislature intended that conviction of a crime under this statute would depend on the incidental result of a third party's conduct, that is, an overt act or proof of actual incitement.

This accords with the interpretation articulated in People v. Plyler, 104 Mich.App. 437, 304 N.W.2d 859 (1981), a factually dissimilar case in which the "overt act" argument was also raised. In holding that no overt act need be established for conviction under this same statute, the Court noted that the purpose of the statute is to punish persons who incite, induce or exhort dangerous conduct. The Court affirmed defendant's conviction of inciting second-degree murder without proof of an overt act by a third party or proof of actual incitement.

A criminal incitement under the statute is conduct by which a person urges another to commit a specified crime with the intent that such a crime result. It is the use of words in this particular manner which constitutes the criminal offense. Defendant, here, sought to have his competitor's store burned. At the point where the defendant successfully contacted the alleged arsonist for the purpose of inducing his participation, the statutory crime was complete.

III

Defendant argues that it was reversible error for the trial court to refuse to instruct on attempted inciting, inducing or exhorting to burn real property. We conclude otherwise.

The statute, as drawn, meets constitutional requirements; an attempt to commit the statutory crime would not. We feel it was the Legislature's goal to punish inciting, inducing or exhorting dangerous conduct and not the attempt to commit this statutory crime. This legislative approach is consistent with constitutional considerations of overbreadth. To punish someone for attempting to incite, induce or exhort a statutorily specified offense would be, perhaps, to punish unexpressed thoughts or otherwise non-culpable conduct. We do not believe that this is what the Legislature intended. Such a crime lacks the required element of imminence to be constitutionally permissible. People v. Chapman, supra.

IV

The people contend that the trial court correctly ruled that withdrawal is not a defense to the charge of inciting, inducing or exhorting to burn real property and that the Court of Appeals erred in reversing defendant's conviction on this ground. We agree.

Enactment of M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2) bespeaks the Legislature's appreciation of the danger to society posed by inciting, inducing or exhorting life-threatening crimes. In addition, completion of the statutory crime signifies the point at which control over the criminal act urged and intended effectively passes to a third party. The fortuitous circumstance of a third party's inaction, as here, does not render the inciting, inducing or exhorting less dangerous. Thus, a defense of withdrawal would be inconsistent with the legislative determination of the conduct to be punished.

The decision of the Court of Appeals is reversed and the defendant's conviction is reinstated.

COLEMAN and WILLIAMS, JJ., concur.

RILEY, J., not participating.

LEVIN, Justice.

Shafou solicited a police informant to burn a competitor's store. On the day before the fire was to occur, Shafou's brother telephoned the police informant and told him not to burn the store.

Shafou was charged with and convicted of inciting, inducing, or exhorting the police informant to unlawfully burn in violation of Sec. 157b of the Penal Code, ¹ added in 1968 after the civil disturbances in Detroit in 1967.

We were prompted to grant leave to appeal by the decision of the Court of Appeals reversing Shafou's conviction on the ground that withdrawal was a defense.

The lead opinion would reverse the judgment of the Court of Appeals on the withdrawal issue and reinstate Shafou's conviction. That opinion agrees with the Court of Appeals in rejecting Shafou's argument that "proof of an overt act by the person sought to be incited is a necessary element". ² It would further hold that "actual incitement" need not be shown:

"A criminal incitement under the statute is conduct by which a person urges another to commit a specified crime with the intent that such a crime result. It is the use of words in this particular manner which constitutes the criminal offense. Defendant, here, sought to have his competitor's store burned. At the point where the...