People v. Dexter, Docket No. 2075

• Decision Date: 14 March 1967
• Docket Number: Docket No. 2075,No. 2,2
• Citation: 148 N.W.2d 915,6 Mich.App. 247
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey James DEXTER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 915

148 N.W.2d 915

6 Mich.App. 247

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey James DEXTER, Defendant-Appellant.

Docket No. 2075.

Court of Appeals of Michigan, Division No. 2 March 14, 1967.

Lee G. Sheffer, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig Pros. Atty., Ingham County, Lansing, for appellee.

Before QUINN, P.J., and FITZGERALD and T. G. KAVANAGH, JJ.

FITZGERALD, Judge.

On August 9, 1965, a complaint and warrant were issued against Harvey James Dexter, charging him with the following offenses:

Count 1: Being a male person, did then and there in a private place, to wit, North American Van Lines, 3110 North Turner street, city of Lansing, county of Ingham, State of Michigan, attempt to procure the commission by a male person, to wit, Edwin Lee Woodard, of an act of gross indecency, in violation of C.L.S.1961, § 750.338 (Stat.Ann.1954 Rev. § 28.570).

Count 2: Did then and there assault one Edwin Lee Woodard with intent to commit the crime of gross indecency, a felony contrary to the provisions of C.L.S.1961, § 750.85 (Stat.Ann.1962 Rev. § 28.280).

Count 3: Did then and there feloniously attempt to commit the abominable and detestable crime against nature, to wit: sodomy, with Edwin Lee Woodard, by having unnatural carnal copulation with said Edwin Lee Woodard contrary to C.L.S.1961, § 750.158 (Stat.Ann.1962 Rev. § 28.355).

Count 4: Did then and there assault one Edwin Lee Woodard with intent to commit the crime of sodomy, a felony, contrary to the provisions of C.L.S.1961, § 750.85 (Stat.Ann.1962 Rev. § 28.280).

The jury returned a verdict of guilty on all four counts. Dexter was sentenced to 3 months to 5 years on Counts 1 and 3 and 9 months to 10 years on Counts 2 and 4, all to run concurrently.

Appellant raises the question of whether the counts charging gross indecency merged into the sodomy counts. Michigan follows the common law definition of sodomy. People v. Hodgkin (1892), 94 Mich. 27, 53 N.W. 794. At common law, sodomy covered only copulation Per anum. 'Penetration Per os did not constitute sodomy, or the 'crime against nature',' People v. Schmitt (1936), 275 Mich. 575, 577, 267 N.W. 741, and cases therein cited. The legislature has shown no inclination to depart from the common law definition of sodomy. Penetration Per os, fellatio, is prohibited by the gross indecency statute. People v. Schmitt, supra. The elements of gross indecency and sodomy differ.

In the case at bar, there was testimony from the complaining witness that the defendant did attempt penetration Per anum. He further testified that the defendant sought to have an act of fellation performed on him. Thus, both sodomy and gross indecency were properly in issue and there was no merger of counts.

Count 3 of the information, attempted sodomy, should have been merged into the conviction on Count 4 of the information, assault with intent to commit the crime of sodomy. Of the two offenses, manifestly the attempt is the lesser and is necessarily included in the conviction on the assault count. People v. Jensen (1926), 76 Cal.App. 558, 244 P. 1086. Any possible error, however, was non-prejudicial. The defendant was found guilty of the larger offense and sentenced to a longer term than for the lesser included offense. In People v. Podsiad (1940), 295 Mich. 541, 295 N.W. 257, the Supreme Court faced a similar problem, stating:

'With regard to the claimed error in sentencing defendant on two counts, based upon the same act, we find no error. Although she was sentenced on each count, the sentences were for the same period of imprisonment and were to run concurrently. It is held that when a defendant is convicted on several indictments tried at the same time and is sentenced on each to run concurrently, the judgment will not be reversed because the evidence was insufficient to support one indictment, since the sentence is, in fact, but a single sentence and is supported by the conviction on the other indictments.'

This reasoning applies with equal force here. The sentence for attempted sodomy was 3 months to 5 years and the assault 9 months to 10 years. In reality this is but a single sentence for 9 months to 10 years.

The same reasoning does not apply to Counts 1 and 2. Count 1 charged the defendant with an attempt to Procure an Act of gross indecency. Count 2 charged the defendant with assault with intent to commit an act of gross indecency. These are separate statutory offenses and do not merge.

The fact that the information charged the defendant with two separate classes of offenses, sodomy and gross indecency, was not error, as both arose out of the same events. People v. Kolowich (1933), 262 Mich. 137, 247 N.W. 133. The defendant at no time objected to the inclusion of these two counts on the same information. He did not object to trial on these counts at the same time. In this state of affairs, it must be held that the defendant waived his...