People v. Guy

270 N.W.2d 662, 84 Mich. App. 610, 1978 Mich. App. LEXIS 2527

• Court: Michigan Court of Appeals
• Decided: July 13, 1978
• Docket: Docket 77-1301
• Status: Published

Opinions

Per Curiam.

We agree wholeheartedly with the conclusion reached in Judge Cavanagh’s dissenting opinion that MCL 750.224; MSA 28.421 is unconstitutionally vague. We also agree that wherever possible an act should be construed to avoid unconstitutionality, if necessary severing unenforceable provisions.

After much deliberation, however, we cannot see how the statutory provision in question can be saved in this case. For example, if a person buys a can of hairspray or deodorant, we do not believe that the question of whether or not that person is violating the statute should be left to the whim or caprice of law enforcement officials. Rather than have each prosecution effect a common-law construction of the provision, the Legislature, if it so desires, should enact a new law which would include a clearly defined "intent” element.

The trial court’s order to dismiss is affirmed.

Affirmed.