Defendant was charged in an information alleging four counts of criminal sexual conduct in the first degree and one count of armed robbery. MCLA 750.520b; MSA 28.788(2), MCLA 750.529; MSA 28.797. A jury found him guilty as *223 chаrged of two counts of criminal sexual conduct and were unable to reach a verdict on the remaining three counts. Defendant was sentencеd to prison and now appeals by right.
Michigan’s new act defining criminal sexual conduct,
"Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists * * * .”
The statute goes on to list in seven sections, some with subsections, various circumstancеs, any of which would render "sexual penetration with another person” to be criminal sexual conduct in the first degree.
The penalty for such conduct is provided as follows:
"(2) Criminal sexual conduct in the first degrеe is a felony punishable by imprisonment in the state prison for life or for any term of years.”
In this case, count 1 of the information charged that defendаnt engaged in sexual penetration with another "under circumstances involving the commission of another felony”. MCLA 750.520b(1)(c); MSA 28.788(2)(1)(c). Count 2 charged that defendant engaged in sexual penetration with another while "aided or abetted by one or more other persons” and "used force or coercion tо accomplish the sexual penetration”. MCLA 750.520b(1)(d)(ii); MSA 28.788(2)(1)(d)(ii). Count 3 charged that defendant engaged in sexual penetration with another while "armed with a weapon, or an article used or fashioned in a manner to lead a person to *224 reasonably believe it to be a weapon”. MCLA 750.520b(1)(e); MSA 28.788(2)(1)(e). Count 4 chаrged that defendant engaged in sexual penetration with another and that defendant "did use force or coercion to accomplish the sеxual penetration” and "did cause personal injury to the complainant”. MCLA 750.520(b)(1)(f); MSA 28.788(2X1X0.
There is no need to recite the evidence at length. It was cleаrly sufficient to support a conviction on any single count contained in the information.
The evidence also clearly showed, however, that defendant had engaged in but one sexual penetration of one victim. 1
As noted, the jury found defendant guilty of counts 2 and 4, and were unable to reach a vеrdict on the remaining counts.
On appeal, defendant claims violations of constitutional and statutory protections against double jeopаrdy. 2 We find it unnecessary to discuss the constitutional issue. We are convinced that the Legislature intended that but one conviction under the criminal sexual сonduct act could result from a single act of intercourse.
It is a familiar rule of statutory construction that criminal statutes must be strictly construed. See,
e.g., People v Ellis,
"No principle is more universally settled than that which deprives all courts of power tо infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents. Nothing can be a crime until it has been recоgnized as such by the law of the land.” Ware v Branch Circuit Judge,75 Mich 488 , 491;42 NW 997 (1889).
Strict construction also serves to guard against the dangers of arbitrary and discriminatory application of otherwisе vague legislative pronouncements.
People v Howell,
It was on these and similar considerations that the "rule of lenity”, as defined and applied in
People v Bennett,
Further aiding our construction of the statute is the fact that it is but one section of a comprehensive statutory scheme defining criminal sexual conduct and providing punishment for violations. The gravamen of the offenses charged in counts 1-4 of the information in this case, all arising under a single sеction of this comprehensive statute, is clearly the unconsented-to sexual penetration of the complainant. While at least some оf the circumstances listed in subsections (aMg) of MCLA 750.520(b)(1); MSA 28.788(2), may amount to criminal behavior in their own right, in the context of the statutory scheme enacted by
We do not perceive any legislative intent, however, that proof of one or more of these aggravating circumstances could transform one criminal sеxual act into many. Although the statute is not explicitly phrased in the alternative, we are of the opinion that the Legislature intended that the various аggravating circumstances be alternative ways of proving criminal sexual conduct in the first degree. Canons of strict construction and the rule of lenity, in аny event, would require that result in the absence of a clear legislative intent to *227 the contrary. Consequently, only one of defendant’s convictions may stand.
Defendant’s conviction on count 4 of the information is hereby vacated, and defendant stands convicted of one count of criminal sexuаl conduct in the first degree.
Although defendant did not preserve for appellate review any objection to the form of the information used in this case, or the jury instructions, and our vacation of one of the convictions eliminates the possibility of a manifest injustice, we would suggest that the problem еncountered here could have been avoided by charging the aggravating circumstances alternatively 5 and instructing the jury appropriately.
Defendant’s conviction on count 4 is hereby vacated. The remaining conviction is affirmed.
Notes
The evidence also showed a sexual penetration of the victim by defendant’s accomplice. Except as to count 2, the prosecutor has never relied on any theory of aiding and abetting and the jury was not instructed on defendant’s possible guilt as an aider or abettor of the sexual penetration accomplished by his accomplice. The charges and convictions were clearly all for defendant’s penetration of the victim.
US Const, Am V and XIV; Const 1963, art 1, § 15; MCLA 768.33; MSA 28.1056.
"A criminal statute ought to be so plain and unambiguous that 'he who runs’ may read, and understand whether his conduct is in violation of its provisions.” Ellis, supra, at 161.
The recent Supreme Court decision in
People v Martin,
"Sec. 55. In an indictment for an offense-which is constituted of 1 or more of several acts, or which may be committed by 1 or more of several means, or with 1 or more of several intents, or which may produce 1 or more of several results, 2 or more of such acts, means, intents or results may be charged in the alternative.” MCLA 767.55; MSA 28.995.