People v. Tinskey

• Decision Date: 08 May 1975
• Docket Number: No. 56099,56099
• Citation: 394 Mich. 108,228 N.W.2d 782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. TINSKEY and John Williams, Defendants-Appellants. 394 Mich. 108, 228 N.W.2d 782
• Court: Michigan Supreme Court

Page 782

228 N.W.2d 782

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Gerald W. TINSKEY and John Williams, Defendants-Appellants.

No. 56099.

394 Mich. 108, 228 N.W.2d 782

Supreme Court of Michigan.

May 8, 1975.

As Corrected May 14, 1975.

Before the Entire Bench.

ORDER

On order of the Court, the application by defendants-appellants for leave to appeal is considered and the same is hereby granted.The Court, Sua sponte reverses the conviction and discharges the defendants.

Defendants were convicted of conspiracy to commit abortion.M.C.L.A. §§ 750.14,750.157a;M.S.A. §§ 28.204,28.354(1).They could not have been convicted of the substantive abortion offense because pregnancy of the woman is a necessary element of that offense.1 Am.Jur.2d, Abortion§ 6, p. 191.Cf.People v. Jones, 308 Mich. 43, 45, 13 N.W.2d 201(1944).It is possible, although we need not decide, that defendants could not have been convicted of attempted abortion; at common law the general rule is that while factual impossibility is not a defense (People v. Jones, 46 Mich. 441, 9 N.W. 486(1881)), legal impossibility is a defense.LaFave & Scott, Criminal Law, § 62, p. 474.

The somewhat indeterminate commonlaw definition of conspiracy, as a combination to accomplish some criminal or unlawful purpose or end or to accomplish a lawful purpose or end by criminal or unlawful means (People v. Tenerowicz, 266 Mich. 276, 285, 253 N.W. 296(1936)), was replaced by 1966 P.A. 296, which defines the object of the conspiracy as the 'commit(ting of) an offense prohibited by law' or of 'a legal act in an illegal manner.'M.C.L.A. § 750.157a;M.S.A. § 28.354(1).

While the crime of conspiracy is distinct from the substantive offense (People v. Chambers, 279 Mich. 73, 77, 271 N.W. 556, 557(1937);State v. Moretti, 52 N.J. 182, 244 A.2d 499(1968)), the Legislature has indicated that in Michigan the penalty for an attempt to commit an offense shall be significantly less than the penalty for the substantive offense.M.C.L.A. § 750.503;M.S.A. § 28.771.We note, without resting decision on this ground, that to charge a person with conspiracy--which may subject the offender to the same jail or prison sentence as the substantive offense--as a substitute for charging attempt to commit the offense tends to circumvent that legislative policy.

There are two statutory patterns prevalent in this country: one requiring that the woman be pregnant (Michigan and other states), the other requiring only that the person to be aborted be a woman.1 Am.Jur.2d, Abortion, § 7, pp. 191--192....