State v. Gunter

529 P.2d 297, 87 N.M. 71

• Court: New Mexico Court of Appeals
• Decided: November 6, 1974
• Docket: 1380
• Status: Published

Opinions

OPINION

HENDLEY, Judge.

Convicted of contributing to the delinquency of a minor contrary to § 40A-6-3, N.M.S.A.1953 (2d Repl. Vol. 6, 1972) defendant appeals asserting ten points for reversal.

Section 40A-6-3, supra, states as follows:

“Contributing to delinquency of minor. —Contributing to delinquency of minor consists of any person committing any act, or omitting 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.”

1. The trial court did not instruct on intent and trial counsel stated he had “no objections or exceptions to the instructions.” If intent is an essential element of the crime it is jurisdictional and may be raised for the first time on appeal. State v. Bachicha, 84 N.M. 397, 503 P.2d 1175 (Ct. App. 1972).

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 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. [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 any form was permitted.

Infants have generally been a favored class for special protection in New Mexico. See Generally 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 regard 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 R.Cr.P. 5(c) [§ 41-23-5(c), N.M.S.A.1953 (2d Repl. Vol. 6, 1972, Poc.Supp.1973)].

2. The other nine points require no discussion and are affirmed on the basis of Supreme Court Order No. 8000 Mise., dated October 3, 1974.

Affirmed.

It is so ordered.

WOOD, C. J., concurs. SUTIN, J., dissenting.