548 P.2d 112 (N.M.App. 1976), 2258, State v. Vogenthaler

Docket Nº:2258.
Citation:548 P.2d 112, 89 N.M. 150, 1976 -NMCA- 030
Opinion Judge:[9] Wood
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Charles VOGENTHALER, Defendant-Appellee,
Attorney:[6] Vince D'Angelo, Knott & D'Angelo, Albuquerque, for defendant-appellant. [7] Toney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Judge Panel:HENDLEY and HERNANDEZ, JJ., concur.
Case Date:March 09, 1976
Court:Court of Appeals of New Mexico
 
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Page 112

548 P.2d 112 (N.M.App. 1976)

89 N.M. 150, 1976 -NMCA- 030

STATE of New Mexico, Plaintiff-Appellee,

v.

Charles VOGENTHALER, Defendant-Appellee,

No. 2258.

Court of Appeals of New Mexico.

March 9, 1976

Page 113

[89 N.M. 151] Vince D'Angelo, Knott & D'Angelo, Albuquerque, for defendant-appellant.

Toney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of desecrating a church in violation of § 40A--15--3, N.M.S.A.1953 (2d Repl. Vol. 6). His appeal claims: (1) the statute is unconstitutional, and (2) the damage was less than $1,000, therefore, his offense was a misdemeanor rather than a felony.

Constitutionality

Section 40A--15--3, supra, states:

'Desecration of a church consists of willfully, maliciously and intentionally defacing a church or any portion thereof.

'Whoever commits desecration of a church is guilty of a misdemeanor, except when the damage to the church amounts to more than one thousand dollars ($1,000) he is guilty of a fourth degree felony.'

The argument of unconstitutionality has three parts: advancing religion, unequal protection and void for vagueness.

Advancing Religion

The First Amendment to the Constitution of the United States provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..' The Fourteenth Amendment to the Constitution of the United States makes this provision applicable to the states. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Art. II, § 11 of the Constitution of New Mexico provides: '. . . nor shall any preference be given by law to any religious denomination or mode of worship.'

Defendant asserts that § 40A--15--3, supra, violates the above quoted 'establishment clauses'. The violation is said to occur because § 40A--15--3, supra, enhances religion in one of two ways. First, defendant states that the Supreme Court has defined 'church' in terms of the Christian religion. Thus, the statute applies to only one religious group. Second, if the statute is held to apply to all 'churches', the statute gives 'greater protection of Church property, thus advancing religion.' Neither contention has merit.

Church of the Holy Faith v. State Tax Commission, 39 N.M. 403, 48 P.2d 777 (1935) does not define church in terms of the Christian religion. What the opinion does state is that such a definition has been given by lexicographers.

Two general definitions of church are used. Church has been defined in terms of an organization for religious purposes. Church has also been defined in terms of a place; that is, an edifice where persons regularly assemble for worship. Calvary Baptist Church v. Coonrad, 163 Neb. 25, 77 N.W.2d 821 (1956); Williams v. Williams, 215 N.C. 739, 3 S.E.2d 334 (1939); Foster v. Harding, 426 P.2d 355 (Okl.1967); Stubbs v. Texas Liquor Control Board, 166 S.W.2d 178 (Tex.Civ.App.1942). The sense in which 'church' is used in § 40A--15--3, supra, is expressive of a place where persons regularly assemble for worship.

'Church' as expressive of a place is not limited to the Christian religion. Josey v. Union Loan & Trust Co., 106 Ga. 608, 32 S.E. 628 (1899); Parnes v. Board of Excise Com'rs of City of Elizabeth, 82 N.J.L. [89 N.M. 152]

Page 114

285, 82 A. 313 (1912); In re McCusker, 47 A.D. 111, 62 N.Y.S201 (1900).

Section 40A--15--3, supra, makes it a crime to deface churches. Such a provision does not advance religion; all it does is to provide a penalty for conduct resulting in damage to a church. The following authorities support this result. Federal construction grants to church-related colleges and universities, Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); property tax exemptions for properties used solely for religious worship, Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); paying money to prison chaplains, Horn v. People of California, 321 F.Supp. 961 (D.C.Cal.1968) affirmed, 436 F.2d 1375 (9th Cir. 1971), cert. denied, 401 U.S. 976, 91 S.Ct. 1198, 28 L.Ed.2d 326 (1971); maintaining on courthouse grounds a granite monolith inscribed with the Ten Commandments and various symbols including '. . . the Star of David . . . and Christ or peace', Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973); statute prohibiting disturbances of religious meetings, Riley v. District of Columbia, 283 A.2d 819 (D.C.App.1971); ordinance prohibiting sale of liquor within a specified distance of a church, Horne v. Hernando County, 297 So.2d 606 (Fla.App.1974); court construction of testator intent in creating a trust benefitting Protestant Christian Hospitals, First National Bank of Kansas City v. Danforth, 523 S.W.2d 808 (Mo.1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975); statute prohibiting sodomy, Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974) and a statute prohibiting profane telephone calls, Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972).

Equal Protection

Defendant contends, in his docketing statement, that § 40A--15--3, supra, violates both due process and equal protection of the law because the statute makes it a greater crime to desecrate a church than for criminal destruction of any other kind of property. Any due process claim based on these alleged facts is considered abandoned because not argued in the brief-inchief. Novak v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970).

The equal protection argument is based on a comparison of § 40A--15--3, supra, with § 40A--15--1, N.M.S.A.1953 (2d Repl.Vol. 6). Section 40A--15--1, supra, defines criminal damage to real or personal property. The crime is a petty misdemeanor. However, if the damage is more than $1,000, the crime is a fourth degree felony.

Defendant asserts that § 40A--15--3, supra, is also a statute pertaining to criminal damage to property. Where the damage is $1,000 or more, the crime is a felony. However, where the damage is less than $1,000, the crime is a misdemeanor. One difference between § 40A--15--1 and § 40A--15--3, is between petty misdemeanor and misdemeanor for damage less than $1,000.

Because the property to which § 40A--15--3, supra, applies is a church, defendant...

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