Dеfendant Daniel Lee Penn and his codefendant Jeffery Clark Lock were convicted by a jury on October 23, 1974, of gross indecency between males. MCLA 750.338; MSA 28.570. On November 12, 1974, defendant was sentenced to a term of from 3 to 5 years in prison. This matter arose out of certain alleged events *641 occurring on Monday, June 17, 1974, involving somе of the inmates of Cell B in the St. Joseph County Jail. At the time, there were six men held in Cell B, defendant Daniel Lee Penn, codefendant Jeffrey Lock, prosecution witnesses Arthur Waters and Alvin Wooster, and two remaining inmates, Steven Boals 1 and Al Halferty. Neither Boals nor Halferty were indorsed on the information or produced аt trial. Testimony at trial indicated that defendant Penn and codefendant Lock forced Waters to perform fellatio upon Lock and Boals. There was testimony indicating that whips had been made from shreds of bedsheets and employed to coerce Waters into performing these sexual acts. It was not сontended at trial that defendant Penn had actually engaged in these sexual acts with Waters. The prosecution based its case on the theory that Penn had forced Waters to commit these acts, had stood guard while they were performed, and testimony was given that Waters was later to engage in this sexual act with Penn, but that the act had been prevented because of outside factors. Defendant and codefendant Lock denied that the acts occurred and denied making whips and beating Waters.
On appeal defendant challenges the constitutionality of the statute. Defendant also raises several procedural errors arising during the trial. We will first address the constitutional questions.
I
We note at the outset that Penn is challenging MCLA 750.338; MSA 28.570, which only applies to acts of gross indecency between males. We also observe that a challenge to the constitutionality of
*642
the statute was not raised below. Since no objections wеre made in the proceedings below on this question of the constitutionality of the statute, the issue is not preserved for appellate review in the absence of clear and manifest injustice.
People v Spencer,
In
People v Howell,
the Court considered several of the claims made in the instant case. The Court considered whether the statute was void for vagueness because it did not provide fair notice of the criminality of the conduct. In the instant case, the prosecution maintained that the defendant had forced Waters to engage in acts of oral sex by beating Waters with homemade whips. The sole defense was that these acts did not occur. Although the jury was not required to find that force was used
2
the record is more than adequate to find such force. The defendant below failed to object or request instructions which would have required a finding of force as apparently required by
Howell,
*643
Defendant also contends that the statute is vague because it fails to provide ascertainable standards of guilt. We similarly rule that there was no manifest injustice in the instant case in light of
People v Howell, supra.
In Part II of the opinion in
Howell
the Court provides new standards under the gross indecency statute as prohibiting oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public.
3
One final contention made by defendant is thаt this statute is overbroad and it impinges on the constitutional right of privacy protected by both the Federal and state constitutions. US Const, Am XIV; Const 1963, art 1, § 17.
Defendant contends that this case is similar to
Detroit v Sanchez,
Defendant contends that this statute could punish conduct which is protected by the fundamental right of privacy.
Griswold v Connecticut,
In
People v Holland,
We rule that this statute prohibiting gross indecency between males does not contain such an infringement on a fundamental right.
People v Howell, supra,
upheld the statute against the vagueness challenge and apparently gave guidelines for its construction. The United States Supreme Court recently affirmed a three-judge District Court for the Eastern District of Virginia which held similar conduct was not protected by the right of privacy. The District Court drew a distinction between the privacy rights of married couples and the consensual private activities of
*646
homosexuals in upholding a Virginia sodomy statute against a constitutional challenge. The majority held that
Griswold, supra,
was concerned only with government trespass upon the sanctity of home and family life and offered no privacy protection to the plaintiffs. The majority did not see any constitutional barriers which would prevent the state frоm regulating the activity of homosexuals.
Doe v Commonwealth’s Attorney for Richmond,
II
Defendant’s first procedural contention is that the prosecutor’s failure to indorse and produce A1 Halferty constituted reversible error. At trial the following conversation between counsel and bench took place:
"The Court: Very well.
*647 "What about the other, with respect to Halferty, he is in prison and he was a possible defendant, what do you say, Mr. Enix?
"Mr. Enix (defense attorney): I understand from the story told that he may not have been.
"The Court: May not have been what?
"Mr. Enix: Chargeable.
"The Court: Well, he can charge him.
"Mr. Enix: All right.
"The Court: Whether he can be convicted or not is another matter.
"Mr. Enix: Yes.
"The Court: And he has indicated this situation where he is in the penitentiary.
"Mr. Enix: I understand that he is in the penitentiary.
"The Court: All right, he has not been indorsed as a witness?
"Mr. Noecker (prosecuting attorney): No, he has not.
"The Court: Very well, thank you, you may sit down.”
We rule there was sufficient evidence showing Halferty to have been an accomplice. There was testimony at trial that he showed others how to make the whips, that he helped or actually adjusted the whips, that he stood in the nude while the acts occurred, purportedly waiting his turn, and that he guarded while the aсts occurred. We will not second-guess the prosecutor or the trial court where the record indicates a basis for determination that Halferty was chargeable. It is well-established that accomplices are not res gestae witnesses for purposes of indorsement.
People v Threlkeld,
*648 III
Defendant also claims that he wаs given ineffective assistance of counsel at trial. We have examined the record and observe that counsel did a credible job. He fully and emphatically cross-examined witnesses and conducted himself in a competent manner. The defense was based on denying that these acts occurred and wе note that this defense was forcefully and adequately presented.
Defendant contends that his legal assistance at trial was inadequate because defense counsel failed to call A1 Halferty who was present in the cell when these acts occurred. Defendant has submitted affidavits as to what Halferty would testify to. These are not part of the record and we disregard them for purposes of this appeal.
People v Robinson,
We do recognize the right of every defendant to effective assistance of counsel.
Powell v Alabama,
*649 IV
Defendant’s final contention is that the instructions to the jury were inadequate with respect to aiding and abetting the сommission of gross indecency between males. No objection to the instructions were made at trial and therefore our review of those instructions is limited.
People v Everett,
Michigan’s aiding and abetting statute provides that punishment of an aider and abettor will be equivalent with that of the principal. MCLA 767.39; MSA 28.979. The purpose of this statute is to abоlish the common law distinction between accessories, principals and aiders and abettors.
People v Palmer,
" 'An aider and abettor is one who helps another to commit an act with the intention and purpose of rendering such help to him and with the knowledge on his pаrt (implied or actual) that the one whom he aids and helps contemplates the commission of the act, the doing of which the aider and abettor not only consents to but also encourages, councils [sic] or assists in the doing of it.’ ”
Aiding and abetting makes a defendant a principal when he shares in any criminal act.
People v Cooper,
"The law in Michigan provides under Section 28.979 that every person concerned in the commission of an offense, whether he directly commits it or procures, counsels, aids or abets in its commission, may hereafter be prosecuted, indicted, tried, and on conviction punished as if he had directly committed such offense.
"So, it is for you to determine which, if either, of these defendants either did it directly or did not do it directly, or aided and abetted one or the other or someone else to do it, or did not do it. And that must be established, as I have indicated, beyond a reasonable doubt.
"Now, as I have indicated to you, and I don’t mean to emphasize it, but I want to make it clear to you, the statute provides that any male person who in public or in private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a violation of this act.
"And with respect to the law of aiding and abetting, every person concerned in the commission of an offense, whether he directly commits it or procures, counsels, aids or abets in its commission, may be arrested, prosecuted, indicted, tried, and upon conviction punished as if he had directly committed such an offense.
"By virtue of this law of aiding and abetting of persons cоncerned in the commission of a crime, including those who directly commit it and those who aid, abet, assist, counsel or procure the commission of a crime are all held equally responsible for the crime with those who actually do it.”
Although the instructions do not expressly state that there must be a conscious sharing оf the
*651
criminal act, we must look to the instructions as a whole to determine if they are acceptable.
People v Charles Jackson,
Here, the essence of the requirements of the aiding and abetting statute was given to the jury and no manifest injustice resulted. We rule the trial judge satisfied his duty of instructing the jury in a clear and intelligent manner imparting a proper understanding of what it was to decide and thе law applicable to the facts.
People v Henry, 395
Mich 367;
Affirmed.
Notes
Steven Boals was apparently tried separately.
The jury instruction was as follows:
"Now, it’s not necessary for there to be any force or putting in fear involved for there to be a violation of this law. It is sufficient if you find beyond a reasonable doubt if the defendants, or either one of them, committed the act or was a party or aided and abetted somеone or each other with Arthur Waters, whether Arthur Waters was a willing participant or was not a willing participant.
"Now, since the defendants deny that it happened at all it doesn’t make any difference they deny that it was either voluntary or involuntary.”
No objection was made to this instruction. Nevertheless, it does not affect the outcome of this case.
Whether or not these facts would indicate they were committed in private or public need not be decided by us.
Acts of indecency have long been construed by the courts of this state to include acts of forced fellatio and fellatio with a minor.
People
v
Howell,
A recent decision of the Wisconsin Supreme Court has provided us with a guiding analysis. In
State v
Driscoll53 Wis 2d 699, 703-704;
"While it is permissible under the argument of оverbreadth which rests on substantive rather than procedural due-process grounds to raise hypothetical examples of the section’s applicability to show that the section deters protected activities, we do not find Driscoll’s example persuasive or valid to establish overbreadth. Only a strained construction of the terms 'indecent liberties’ or 'indecent use’ in sec. 944.11(2) and (3), stats., would give such a sweep as to be censured for overbreadth. The normal and reasonable meaning of the language must be found so broad that its sanctions apply to constitutionally protected conduct which the state is not entitled to regulate before a statute can be faulted for overbreadth.
[State v Starks,
Ibid.