STATE оf New Mexico, Plaintiff-Appellee, v. Lester Allen GUNTER, Defendant-Appellant.
No. 1380.
Court of Appeals of New Mexico.
Nov. 6, 1974.
Certiorari Denied Dec. 13, 1974.
529 P.2d 297 | 71 N.M. 71
It is so ordered.
WOOD, C. J., and LOPEZ, J., concur.
Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Santa Fe, Don Klein, Asst. Appellate Defender, Santa Fe, for defendant-appellant.
David L. Norvell, Atty. Gеn., Ralph W. Muxlow, II, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
Convicted of contributing to the delinquency of a minor contrary to
“Contributing to dеlinquency of minor. -Contributing to delinquency of minor consists of any person committing any act, or omitting the performance of any duty, which aсt or omission causes, or tends to cause or encourage the delinquency of any person under the age of eighteen [18] yeаrs.”
Defendant‘s first point contends that criminal intent is a required element of the crime of contributing to the delinquency of a minor. We disagree.
“. . . [T]he legislature may forbid the doing of an act аnd make its commission criminal, without regard to the intent with which such act is done; but in such case it must clearly appear from the Act (from its languаge or clear inference) that such was the legislative intent. [citations omitted].”
State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941).
A reading of the statute indicates the legislature did not intend that criminal intent be an element of the offense of contributing to the delinquency of a minor. Anderson v. State, 384 P.2d 669 (Alaska 1963); State v. Sobelman, 199 Minn. 232, 271 N.W. 484 (1937); State v. Kominis, 73 Ohio App. 204, 55 N.E.2d 344 (1943); State v. Doud, 190 Or. 218, 225 P.2d 400 (1950). See also Church v. Territory, 14 N.M. 226, 91 P. 720 (1907) where our Supreme Court held intent was not an essential element of the offense of permitting a minor under the age of twenty-one years to frequent any saloon where gambling in аny form was permitted.
Infants have generally been a favored class for special protection in New Mexico. See Genеrally New Mexico Digest (Vol. 4, 1965), Infants, 20. It goes without saying, there are good reasons for this special protection. The language and philosophy set forth in State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949) is appropriate:
“The ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency. . . .”
From the foregoing we are convinced that the legislative intent was to make the commission of the act of contributing to the delinquency of a minor a crime without regаrd to intent. Accordingly, criminal intent was not an essential element of the crime charged and failure to instruct was not jurisdictional. Also the wording of the information in the terms of the statute was proper. The information fulfilled the requirements of
2. The оther nine points require no discussion and are affirmed on the basis of Supreme Court Order No. 8000 Misc., dated October 3, 1974.
Affirmed.
It is so ordered.
WOOD, C. J., concurs.
SUTIN, J., dissenting.
SUTIN, Judge (dissenting).
I dissent. The Contributing to Delinquenсy Statute is unconstitutionally vague. By its vagueness, it deprives those accused under its provisions of due process, in violation of the
In Statе v. Mascarenas, 84 N.M. 153, 500 P.2d 438 (Ct.App.1972) (concurring opinion), I laid out the reasons why I believe this statute to be void for vagueness. To that analysis, I add thе following.
“Delinquency” is defined in the new Children‘s Code,
To interpret
If on its face the challenged provision is repugnant to the due prоcess clause, specification of details of the offense intended to be charged would not serve to validate it. . . . No onе may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. [citations omittеd; emphasis added]. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939).
There is a further constitutional problem with this statutory section.
Appellant also contends that an act which leads to criminal liability under this section (because it has the effect of causing or encouraging delinquency in а minor) must, itself, be an unlawful act. If that is so, then it was reversible error for the trial court not to have instructed the jury on this. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). However, the Majority Opinion rejects appellant‘s contention on this point. I agree, since there is nothing in the language of the statute or in the legislative histоry to indicate that the “act or omission” referred to in
Yet, if the section does not require specific criminal intent and also does not require that the act, itself, in which an accused engages be criminal, then a person may find himself guilty of a crime, under
And if the act which got the accused into this mess need not, itself, be illegal, then this statute does not create an “actus malum prohibitum“, that is, “‘[a]n act which is wrong . . . because made so by statute.’ 54 C.J.S. p. 909;” Riss and Co., Inc. v. United States, 262 F.2d 245, 248, n. 3 (8th Cir. 1958). What the section does, in effect, is to create a “consеquentia malum prohibitum“, a result or consequence that is wrong because it is prohibited by statute. The requirements of due process, and of reason, keep from оur legislators such unbridled power.
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those whо are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant аlike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926).
Appellant‘s conviction should be reversed.