State v. McKINLEY, 5113

Citation202 P.2d 964,53 N.M. 106
Decision Date11 February 1949
Docket NumberNo. 5113,5113
PartiesSTATE v. McKINLEY.
CourtSupreme Court of New Mexico

[202 P.2d 964, 53 N.M. 107]

Harry D. Robins, Asst. Dist. Atty., of Albuquerque, C. C. McCulloh, Atty. Gen., and Robert V. Wollard and Walter R. Kegel, Asst. Atty. Gen., for plaintiff in error.

Joe L. Martinez, of Albuquerque, for defendant in error.

SADLER, Justice.

The state appeals from the judgment of the District Court of Bernalillo County (Div. No. 2) sustaining defendant's motion to quash the criminal information filed by the district attorney charging him under L.1943, c. 36, § 1, with contributing to the delinquency of a female minor under the age of 18 years and dismissing the information. The motion to quash is based on the claim that the constitutional guaranties of due process and equal protection of the laws found in the state and federal constitutions are violated by reason of the uncertainty and indefiniteness of the statute under which the defendant stands charged. Contemporaneously with the filing of the information the state filed a bill of particulars. The information, omitting the caption, reads: 'Harry D. Robins, Assistant District Attorney for the Second Judicial District of the State of New Mexico, composed of the Counties of Bernalillo.Sandoval and Valencia in said State, accuses R. L. McKinley of contributing to the delinquency of a minor, and charges that on or about the 28th day of August, 1947, in the County of Bernalillo and State of New Mexico, the said R. L. McKinley did commit certain acts, which acts did cause or tend to cause or encourage the delinquency of _____ _____, a person under the age of 18 years.'

The bill of particulars, omitting the name of the female minor, reads:

'Comes the State of New Mexico by Harry D. Robins, Assistant District Attorney, and for his Bill of Particulars states that the charge of contributing to juvenile delinquency against the defendant arose out of the following facts:

'That the defendant, R. L. McKinley, did on or about the 28th day of August, 1947, contribute to the juvenile delinquency of one _____ _____, a female 14 years of age by having sexual intercourse with her.'

The trial court sustained the motion to quash and dismissed the information upon the ground that the statute mentioned is so vague, indefinite and uncertain as to render it null and void. In its formal order sustaining the motion, although not raised by the defendant, the court of its own accord, took notice of L.1945, c. 81, § 1, purporting to give juvenile courts exclusive original jurisdiction over the offense of contributing to juvenile delinquency, enacted notwithstanding the fact that the legislature by L.1943, c. 36, § 1, 1941 Comp., § 44-116, Cumulative Pocket Supplement, had made such offense a felony. The state through this appeal seeks a revision and correction of the judgment so rendered against it.

The statute under which the information was drawn was enacted as L.1943, c. 36, § 1, 1941 Comp., § 44-116, Cumulative Pocket Supplement, and reads: 'Any person who shall commit any act or omit the performance of any duty, which act or omission causes, or tends to cause or encourage the delinquency of any person under the age of eighteen (18) years, shall upon conviction thereof, be punished by fine not exceeding one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.'

Although it makes no reference to the earlier statute, 1941 Comp., § 44-112, L.1941, c. 134, § 1, amending L.1917, c. 4, § 10, both of which, in almost identical language, create the offense of contributing to juvenile delinquency, nevertheless and necessarily, the later act repeals all former acts as the law on the subject of what constitutes the offense. Indeed, L.1943, c. 40, § 8, expressly repeals L.1941, c. 134, § 1, 1941 Comp., § 44-112. It is to be observed, too, that in each of the earlier enactments it is declared that 'any person who shall commit any act or omit the performance of any duty,' which causes or tends to cause or encourage juvenile delinquency ' as defined in section _____' of the act, ' or who shall otherwise contribute to the delinquency of a person under the age of ____ years,' by the 1917 act is guilty of a misdemeanor and subjected to a fine not exceeding $1,000 or imprisonment in the county jail not more than one year, or both, and by the 1941 act to the same penalty; or, additionally, by imprisonment in the state penitentiary for not less than one year nor more than five years, or by both thefine above mentioned and the penitentiary sentence last named. So much of the statute last quoted above as has been italicized, found in the 1917 and the 1941 acts, is omitted from the latest enactment, L.1943, c. 36, § 1, 1941 Comp., § 44-116, Cumulative Pocket Supplement.

As last amended, L.1943, c. 40, § 1, 1941 Comp., § 44-101, Cumulative Pocket Supplement, a juvenile delinquent is defined as follows:

'A juvenile delinquent is declared to be anyone under the age of eighteen (18) years

(1) Who has violated any law of the state, or any ordinance or regulation of a political subdivision thereof;

(2) Or by reason of being incorrigible, wayward, or habitually disobedient, is uncontrolled by his parents, guardian or custodian;

(3) Or who is habitually truant from school or home;

(4) Or who habitually deports himself as to injure or endanger the morals, health or welfare of himself or others. (Laws 1917, ch. 4, § 1, p. 32; 1929, ch. 74, § 1, p.109; C.S.1929, § 35-4104; Laws, 1943, ch. 40, § 1, p. 58.)'

The first challenge to the statute's validity is that it is so vague, indefinite and uncertain as to be incapable of interpretation and enforcement. With this contention, we do not agree. While the earlier definitions of the offense specifically declared that the person committing any act or omitting to perform any duty calculated to cause or encourage juvenile delinquency, as defined by section 1 of the respective acts, would be declared guilty of contributing to juvenile delinquency, it does not require forced construction to hold, without benefit of the language just italicized, or its equivalent, that any act of commission or omission causing or tending to cause juvenile delinquency as specifically defined in the act, to say the least, constitutes the offense. Statutes of some other states having language of similar import to that found in ours have been sustained against the same attack here made. Loveland v. State, 53 Ariz. 131, 86 P.2d 942; People v. Hemma, 94 Cal.App. 25, 270 P. 457; State v. Johnson, Mo.App., 145 S.W.2d 468; State v. Friedlander, 141 Wash. 1, 250 P. 453; Friedlander v. State, 275 U.S. 573, 48 S.Ct. 17, 72 L.Ed. 433, W.E. dismissed; State v. Harris, 105 W.Va. 165, 141 S.E. 637.

In Loveland v. State, supra [53 Ariz. 131, 86 P.2d 945], in sustaining the statute, the court said: 'Proceeding to the other horn of the dilemma, it is next urged by the appellants that Chapter 91, supra, is a nullity in that the statute makes it a misdemeanor for any person to encourage, cause or contribute to the dependency or delinquency of a minor child but does not specify or define the particular act or acts whichconstitute the offense; and that any law which characterizes an act as a crime or not, according to the moral sentiments of the judge or jury, after the act has been committed is so uncertain and indefinite as to amount to a snare and a delusion and untenable under the Constitution of the State of Arizona. In support of this contention are cited Ex parte Andrew Jackson, 45 Ark. 158; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284. It is true that the ruling in these cases has been followed in many jurisdictions where the peculiar circumstances of the individual case justified its application, but on the other hand it is equally true that there is almost no dissent from the rule that it is the duty of the court to sustain and uphold statutes rather than to ignore and defeat them and to give them operation if the language will permit instead of treating them as meaningless. Coggins v. Ely, 23 Ariz. 155, 202 P. 391.'

The Supreme Court of Washington in State v. Friedlander, supra [141 Wash. 1, 250 P. 455], spoke in a similar vein on the subject. It said: 'The next contention is that the statute under which the prosecution is had is in itself unconstitutional. The statute makes it a misdemeanor for any person to 'encourage, cause, or contribute to, the dependency or delinquency' of a minor child, but does not specify or define the particular act or acts which will constitute the offense. But, under the rule as we have hereinbefore announced it, the objection is not fatal. It...

To continue reading

Request your trial
48 cases
  • City of Raton v. Sproule
    • United States
    • New Mexico Supreme Court
    • June 19, 1967
    ...the challenged legislation. State ex rel. Hovey Concrete Prod. Co. v. Mechem, 63 N.M. 250, 316 P.2d 1069 (1957); State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). Logic and reason compel that a like, or even stronger, presumption must prevail in favor of the validity of a constitutional ......
  • State v. Flinn, s. CC888--CC890
    • United States
    • West Virginia Supreme Court
    • July 2, 1974
    ...145 S.W.2d 468 (Mo.); State v. Simants, 182 Neb. 491, 155 N.W.2d 788; State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572; State v. McKinley, 53 N.M. 106, 202 P.2d 964; State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897; State v. Crary, 80 Ohio L.Abs. 417, 155 N.E.2d 262; State v. Coterel, 97 Oh......
  • State v. Luna
    • United States
    • Court of Appeals of New Mexico
    • January 23, 2018
    ...the broadest possible protection to children, who may be led astray in innumerable ways"); State v. McKinley , 1949-NMSC-010, ¶ 12, 53 N.M. 106, 202 P.2d 964 ("The ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinou......
  • State v. Garcia
    • United States
    • Court of Appeals of New Mexico
    • December 6, 2012
    ...validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency.” State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949). The CDM statute does not burden more speech than necessary in order to fulfill its broad purpose of protecting child......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT