Defendant was convicted by a judge, sitting without a jury, of taking indecent and improper liberties with a girl under the age of 16 years. MCLA § 750.336 (Stat Ann 1954 Rev § 28-.568). At the time the alleged offense was committed, the girl was ten years of age and the defendant was an invited guest in her home. The child’s parents were also- at home. The testimony showed that the defendant entered the child’s bedroom, sat on the edge of the bed, kissed her several times on the mouth and neck and put his tongue in her mouth. The trial judge found that there was no attempt or request to take other liberties.

Kissing can be sexual or nonsexual. In our culture, kissing, unaccompanied by other sexual overtones, is not generally regarded as indecent even if the person kissed or, in the case of a young child, the parents of that child, regard the kissing as objectionable. Thus, the defendant’s action in kissing the young girl on her lips and on her neck which might well be regarded, under the circumstances, as indiscreet, was not indecent within the meaning of this statute.

*269Tlie people stress tire testimony which, showed that additionally the defendant while kissing the girl inserted his tongue in her mouth. This was not such a variation from permissible, uoncriminal conduct to justify characterization of the defendant’s action as violative of this statute at least where, as here, there is no claim or evidence that the defendant solicited or otherwise touched the child sexually.1 "We are convinced that the defendant’s conduct was not the kind the legislature had in mind when it made the taking of indecent and improper liberties a crime for which a man may be sentenced to up to 10 years’ imprisonment.

The question of what constitutes the lowest threshold of criminal conduct under this statute is one of law to be decided by the court; the minimum standard is not a question of fact. Undoubtedly there are those who would regard the defendant’s actions as indecent, but we cannot say that their evaluation is so universally held that it can properly be termed the “common sense of society.” People v. Hicks (1893), 98 Mich 86, 90.2

*270Beversed. The defendant is discharged.

(dissenting). I cannot subscribe to an opinion which holds that one who kisses a 10-year-old girl and inserts his tongue in her mouth is not guilty of taking indecent and improper liberties as a matter of law. A standard jury instruction, approved by the Supreme Court, is found in People v. Hicks (1893), 98 Mich 86, and People v. Noyes (1950), 328 Mich 207, 211:

“Indecent and improper liberties with the person of such child means such liberties as the common sense of society would regard as indecent and improper. No particular definition is given by the statute of what constitutes this crime. The common sense of the community as well as the sense of decency and propriety and morality which most people entertain is sufficient to apply the statute to each particular case and point out what particular conduct is rendered criminal by it, that is, by the statute.”

Whether defendant’s conduct in the instant case “is not such a variation from permissible noncriminal conduct to justify characterization of the defendant’s action as violative of this statute” is a question for the trier of fact.

I vote to affirm.