State v. Austin

Decision Date19 September 1969
Docket NumberNo. 359,359
Citation80 N.M. 748,1969 NMCA 95,461 P.2d 230
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Leon AUSTIN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Warren F. Reynolds, Easley & Reynolds, Hobbs, for defendant-appellant


Defendant appeals his conviction of the unlawful taking of a vehicle, § 64--9--4(a), N.M.S.A. (Repl.Vol. pt. 2). That statute provides:

'UNLAWFUL TAKING OF A VEHICLE.--(a) Any person who shall take any vehicle intentionally and without consent of the owner thereof shall be guilty of a felony. The consent of the owner of the vehicle to its taking shall not in case be presumed or implied because of such owner's consent on a previous occasion to the taking of such vehicle by the same or a different person.'

Defendant attacks the constitutionality of he statute on the ground that:


We affirm for the reasons hereinafter stated.

Although this is raised for the first time on appeal, the question raised is jurisdictional and will be considered on review. Section 21--2--1(20)(1), N.M.S.A.1953. State v. Barreras, 64 N.M. 300, 328 P.2d 74 (1958); State v. Sena, 54 N.M. 213, 219 P.2d 287, 289 (1950). See Barnett v. Cal M, Inc., 79 N.M. 553, 445 P.2d 974 (1968).

As stated in State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921):

'* * * (W)here the alleged unconstitutional character of a statute concerns a matter of evidence, rather than the offense itself, the constitutional question cannot be raised for the first time on appeal. But in this case a different proposition is involved. Here the question of the constitutionality of the act involved determines whether a crime has been committed. If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of the cause. It is a proceeding to punish a man where there is no law authorizing the same. In such a case it would seem that the question is jurisdictional and may be raised for the first time on appeal, and we so hold.'

Defendant contends the statute is vague and uncertain in its meaning. Defendant bases this contention on the fact that other statutes relating to conversion of personal property utilize the words, 'stealing,' 'theft,' 'fraudulent conduct, practices or representations' and 'fraudulent intent.' Defendant contends that since the Legislature uses the word 'steal' in § 64--9--4(b), N.M.S.A.1953 (Repl.Vol. 9 pt. 2), when referring to the taking of an automobile part and used the word 'intentional' in the taking of an automobile, then the Legislature intended to eliminate the 'element of unlawful taking required to constitute larceny of an automobile under our prior larceny statute, Laws 1921, ch. 123, § 1.'

Thus, defendant raises contentions concerning criminal intent and the intent to commit larceny.

As stated in State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962):

"Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it. State v. Blacklock, 23 N.M. 251, 167 P. 714; Smith v. State, 223 Ala. 346, 136 So. 270; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; Youngs Rubber Corp. v. C. I. Lee & Co., 2 Cir., 45 F.2d 103. But the legislature may forbid the doing of an act and 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 language or clear inference) that such was the legislative intent. Masters v. United States, 42 App.D.C. 350, Ann.Cas.1916A, 1243."

Is 'criminal intent' required? It is a matter of construction. Even after comparing § 64--9--4(a), supra, with other statutes concerning conversion of personal property, it does not 'clearly appear' that the Legislature intended to eliminate criminal intent. Criminal intent is an element of the crime established by § 64--9--4(a), supra. State v. Craig, supra; State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941); State v. Davis, 80 N.M. 347, 455 P.2d 851 (Ct.App.1969). Defendant's apprehension that a person who by mistake, or in the honest belief that the car was owned by him, took a vehicle without the consent of the owner might be punished, even though innocent, is unwarranted. Criminal intent is required.

What is criminal intent? It is more than 'intentional' taking. It is a mental state. Compare State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969). This mental state is a conscious wrongdoing. Concerning this conscious wrongdoing, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) states:

'* * * courts of various jurisdictions,...

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    • United States
    • New Mexico Supreme Court
    • September 1, 1987
    ...cert. denied, 85 N.M. 265, 511 P.2d 751 (1973); State v. Pedro, 83 N.M. 212, 490 P.2d 470 (Ct.App.1971); and State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969). Because a defendant who does not have the mental state required by law for the commission of a particular offense cannot be ......
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    ...doing overrule our decision in Gunzelman. In overruling our holding in Gunzelman we do not overrule our decision in State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969) and some of its progeny. State v. Bachicha, 84 N.M. 397, 503 P.2d 1175 (Ct.App.1972); State v. Lopez, (Lopez 1), supra......
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