In such a case, the legislature leaves the setting of the minimum sentence to the court for the very purpose of creating latitude so as to relieve from the maximum penalty those defendants whose conduct contained some circumstances of mitigation, or at least no circumstances of aggravation.

But it does not follow that because the legislature has left the setting of the minimum term to the courts, no minimum term can ever be excessive.

We reject the proposition that punishments can be "cruel and unusual" in the popular sense, but not in the constitutional sense. The Constitution is a popular document. It must be construed by the courts to have that meaning which the people intended it to have.

It is ludicrous to suppose that the people who prohibited excessive fines and bail and cruel or unusual punishment intended thereby to vest unbridled power in judges to require bail, impose fines and inflict punishments.

It is equally unrealistic to conclude that the people intended to permit the legislature to give such unbridled power to the trial courts in the name of indeterminate sentencing.

Many examples could be given in which maximum statutory punishments are at variance with the realities of the administration of justice.

Traffic violations, for instance, are punishable under the motor vehicle code as misdemeanors, carrying a maximum of 90 days in jail and $100 fine.

While certain aggravated circumstances might be supposed justifying such penalties in some cases, it would be shocking indeed if the maximum penalty should be meted out for a commonplace left turn violation!

Surely this Court would not consider itself powerless to interpose in such a case.

Our constant reiteration that an appellate court is without authority to review a

194 N.W.26-571/2

Mich. 905

sentence has no basis in law or logic. M. C.L.A. § 769.1 provides that Justices of the Supreme Court have sentencing power, as fully as circuit judges. There is no reason to suppose that such authority is idly given or has no relation to the appellate function.

The authority, indeed the duty, of this Court to vacate sentences which exceed the permissible limits of statutory provisions is clear. Such sentences are illegal. They violate the law. As such, they are null and void.

The Constitution is the fundamental law. It is as explicit and as binding on courts as the pronouncements of the legislature. A sentence of a court which violates the Constitution is illegal. This Court is not without the power to support and observe the Constitution and to apply it to the actions of judges, even when such actions are literally within the discretion vested by statute.

The legislature has no power to invest a court with discretion to violate the Constitution.

This case of Sinclair has been given much notoriety. Defendant and his supporters have used his conviction and sentence as a vehicle to attack the wisdom and efficacy of the marijuana laws.

We have declined to enter into that controversy. The judicial fact-finding process is not adaptable to finding mixed questions of fact and policy.

But we do note that the possession of narcotic drugs is a crime malum prohibitum only. This is particularly apparent in the case of marijuana. The statute prohibits possession of any part of the cannibus sativa plant. Possession of a natural growing plant can hardly be malum in se.

As officers sworn to uphold the Constitution we recognize with understanding, the action of the learned trial judge.

The attitude of hostility and remorselessness displayed by the defendant and the disruption of orderly proceedings by his supporters surely combined to tax the patience of the court. And certainly if reha

bilitation were the sole purpose of sentencing, the measure of the imprisonment would be more the posture of the defendant than the gravity of the offense.

But rehabilitation is not the only function of punishment. It is not even always possible. Where the defendant is recalcitrant, whether from principle or out of sheer meanness, the law cannot, in a free society, disregard the nature of the offense and address itself only to the character of the offender.

Where a minimum sentence is imposed which is demonstrably and grossly excessive, in the light of the depravity of the criminal as shown in the commission of the act and in light of the usual and customary disposition of those convicted of like conduct, such minimum sentence violates the constitutional prohibition against the inflicting of cruel or unusual punishment, and is illegal and void.

The sentence is vacated, and the cause is remanded for re-sentencing. In the meantime defendant will be admitted to bail with bond in the amount of $1,000.00.

ADAMS, J., concurs.

KEY NUMBER SYSTEM,

37 Mich.App. 442

PEOPLE of the State of Michigan, 、 Plaintiff-Appellee,

V.

Joseph PAYNE, Defendant-Appellant.

Docket No. 9392.

Court of Appeals of Michigan,

Div. 1.

Dec. 22, 1971.

Released for Publication March 9, 1972.

By a judgment of the Recorder's Court of Detroit, Wayne County, George W. Crockett, Jr., J., the defendant was

83-317 - 77-36

[5-7] Further, defendant attacks the constitutionality of the indecent liberties statute as unduly vague.3 We cannot accept this contention. The legislation penalizes conduct that is of such character that the common sense of society regards it as indecent and improper. People v. Hicks (1893), 98 Mich. 86, 56 N.W. 1102; People v. Szymanski (1948), 321 Mich. 248, 32 N.W.2d 451; People v. Healy (1933), 265 Mich. 317, 251 N.W. 393; People v. Visel (1936), 275 Mich. 77, 265 N.W. 781; People v. Lakin (1938), 286 Mich. 282, 282 N.W. 149; People v. Brandt (1969), 18 Mich. App. 267, 171 N.W.2d 59; People v. Dexter (1967), 6 Mich. App. 247, 148 N.W. 2d 915; Armstrong v. Bannan (C.A.6, 1959), 272 F.2d 577. A penal statute, proscribing sexually offensive, anti-social conduct, is not unconstitutionally ambiguous because it fails "* outline the acts encompassed by the crime

to graphically

2. That the policewoman indicated that defendant entered the victim is not, in and of itself, significant since this fact need not be proven in an indecent liberties prosecution. The testimony as to penetration cannot be said to have influenced the outcome.

3. Defendant also challenges the statute as unconstitutionally discriminatory; we find this totally without merit. While the legislation originally punished the misconduct of males only, the legislation was amended in 1954 to include females. P.A.

[8] Finally, defendant took the stand to deny the allegations of the complainant. The prosecutor on cross-examination and for the purposes of testing defendant's credibility brought defendant's past convictions to light. It remains the law of Michigan that, whenever defendant chooses to testify, his past convictions may be used by the prosecution to impeach his credibility. M.C.L.A. § 600.2158 (Stat.Ann.1962 Rev. § 27 A.2158); People v. DiPaolo (1962), 366 Mich. 394, 115 N.W.2d 78; People v. Cybulski (1968), 11 Mich.App. 244, 160 N.W. 2d 764; People v. Roney (1967), 7 Mich. App. 678, 153 N.W.2d 175.

[9] The final allegation of error is that the trial court failed to make specific findings of fact at the conclusion of the case. While GCR 1963, 517.1, requires the court in a nonjury case or in a case tried with an advisory jury to make findings of fact and state separately its conclusions of law thereon, this court rule does not apply to criminal cases.

Affirmed.

1954, No. 51, § 1. Defendant's prosecution is under this later, amended version.

4. See also, People v. McMurchy (1930), 249 Mich. 147, 178, 179, 228 N.W. 723, in which it is noted that some crimes by their very nature must necessarily be couched in broad language so that the legislation can accomplish its end of proscribing socially undesirable conduct. No legislation of this genus could ever possibly recite a litany of wrongdoing for which one remained criminally respon

sible.

witness, a chemist, and although expert testimony was not essential to establishment of probable cause in respect to sale of marijuana, there was no basis for concluding that affidavit in support of motion to continue was false nor that state became obligated to produce expert testimony before grand jury to establish probable cause once it used absence of expert to gain continuance in justice court, and probable cause for bringing of indictment was established, where testimony of undercover agent before grand jury was sufficient to establish that petitioner had either directly, or by necessary implication, represented that substance he was selling was marijuana; however, mere physical presence of other petitioner during time undercover agent made arrangements to purchase marijuana and statement of other petitioner as to price a "baggie" of marijuana would be may well have subjected her to criminal charges but was insufficient to establish probable cause that she had made a "sale" of marijuana and indictment brought against her charging sale should have been dismissed.

Affirmed as to one petitioner and reversed as to other petitioner.

Ner. 17

10.2(8)

4. Indictment and Information Although state obtained a continuance at a scheduled preliminary hearing in justice court because of absence of their expert witness, a chemist, and although expert testimony was not essential to establishment of probable cause in respect to sale of marijuana, there was no basis for concluding that affidavit in support of motion to continue was false nor that state became obligated to produce expert testimony before grand jury to establish probable cause once it used absence of expert to gain continuance in justice court, and probable cause for bringing of indictment was established, where testimony of undercover agent before grand jury was sufficient to establish that petitioner had either directly, or by necessary implication, represented that substance he was selling was marijuana. N.R.S. 453.030, 453.210, subd.

2.

5. Drugs and Narcotics 102

Mere physical presence of petitioner's wife during time undercover agent made arrangements with defendant to purchase marijuana and her statement as to price a "baggie" of marijuana would be may well have subjected her to criminal charges but was insufficient to establish probable cause that she had made a "sale" of marijuana and indictment brought against her charg. ing sale should have been dismissed. N.R. S. 453.030, 453.210, subd. 2.

6. Constitutional Law 50

The legislature has full and exclusive authority in all matters of legislation so long as it does not transgress the bounds of some constitutional limitation.

7. Criminal Law 5

The power to define crimes and penal ties lies exclusively in the legislature.

8. Constitutional Law 250.1(2) Drugs and Narcotics ➡43

Provision of former statute classifying marijuana as a narcotic was neither arbitrary nor violative of equal protection. N.R.S. 453.011 et seq., 453.020, subd. 2. 453.321; U.S.C.A.Const. Amend. 14.