(specially concurring).
I agree with the result reached. I disagree with the majority opinion that “Defendants may not challenge the constitutionality of a statute or a portion of a statute under which they have not been charged.” Defendants have standing. See dissent, State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (1973).
Defendants were charged with commercial gambling contrary to § 40A-19-3, N. M.S.A.1953 (2d Repl.Vol. 6). Defendants challenged the constitutionality of the whole section. If the whole section is unconstitutional, defendants cannot be charged with violation of subsection (E). Therefore, defendants have standing not challenged by the State.
The State believed defendants had standing to challenge the constitutionality of the entire section. Its brief was devoted solely to this constitutional issue.
Unconstitutional vagueness is determined by considering the statute as a whole. This includes the penalty provision of a criminal statute. The “vagueness” rule is set forth in State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969).
The first challenge to meet is the alleged conflict in punishment set forth in § 40A-19-3(E), supra, and § 40A-19-2(D). These provisions concern lotteries. Section 40A-19-3(E) provides:
Commercial gambling consists of either: ******
E. conducting a lottery where both the consideration and the prize are money, or whoever with intent to conduct a lotteryt possesses facilities to do so; or [Emphasis added]
******
Whoever commits commercial gambling is guilty of a fourth degree felony. [Emphasis added]
Section 40A-19-2(D) provides:
Gambling consists of:
D. possessing facilities with intent to conduct a lottery.
Whoever commits gambling is guilty of a petty misdemeanor. [Emphasis added]
Section 40A-19-1(B) defines “Lottery”.
B. ‘Lottery’ means an enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill. As used in this subsection, ‘consideration’ means anything of pecuniary value required to be paid to the promoter in order to participate in such enterprise;
Section 40A-19-6 provides for permissive lottery applicable to (1) church, public library or religious society; (2) motion picture theaters; and (3) county fair.
It is clear and unequivocal that if a person is convicted of “commercial gambling” under the above statute, he is guilty of a fourth degree felony. If he is convicted of “gambling” under the above statute for the identical charge, i. e., “possessing facilities with intent to conduct a lottery”, he is guilty of a misdemeanor. This is not vague and uncertain. The extent of the penalty depends upon the information filed by the district attorney or, in the event the’ two statutes are presented to the grand jury, the extent of the penalty depends upon the indictment returned by it. The grand jury indictment charged that defendants “did unlawfully engage in commercial gambling” contrary to § 40A-19-3, supra.
Defendants contend that both sections supra “die for want of certainty as to punishment.” No authority is cited. I disagree. There is no want of certainty. The difference between “commercial gambling” and “gambling” depends upon the facts in each case. No definition of “commercial gambling” has been found. Used in its ordinary sense, the words mean gambling as a business operation, having financial profit as its primary aim. “Gambling” as used in § 40A-19-2, supra, contemplates participation in a single event. “Gambling” is not as violative of public morals as “commercial gambling”. Therefore, a fourth degree felony versus a petty misdemeanor constitutes fair imposition of penalties. They are obviously separate offenses and must be treated as such. I agree with the State “that the legislature intended to differentiate private gambling between so-called private individuals, and commercial gambling which involved the participation in the earnings of gambling operations
In any event, the trial court’s finding that “there exists unconstitutional uncertainty as to the punishment of violation of either” statute does not find support in law.
The second challenge to meet is the alleged conflict in punishment set forth in § 40A-19-3(F) and § 40A-19-4(B). These statutes relate to gambling devices. This was adequately met in the majority opinion. I would simply add that fourth degree felony versus misdemeanor in the above statutes does not create vagueness and uncertainty in the punishment provided by those statutes.
The legislature was clear and unequivocal in identifying two prohibited acts — ■ gambling and commercial gambling.
The third challenge to meet is whether the total intent of the legislature in regulating general gambling activity prevents severing any subsection of § 40A-19-3, supra. This issue would arise if there was “unconstitutional vagueness and uncertainty regarding punishment”. Since this is not in question, the issue of severability does not arise. On the issue of severability see Bradbury & Stamm Const. Co. v. Bureau of Revenue, 70 N.M. 226, 372 P.2d 808 (1962).
Defendants further contend that the State failed in its brief to attack the trial court’s finding No. 2 set forth in the majority opinion. Therefore, they contend, the State should be bound by the trial court’s determination. No authority is cited. The State’s position in its brief was directed primarily against the trial court’s finding No. 3 set forth in the majority opinion relative to legislative intent and severability, to show that the statute was constitutional. This argument was sufficient to lead us to reversal because the “finding” was in effect a “conclusion” reached from findings No. 1 and 2. We are not confronted with the rule, where after trial, the court made findings of fact and conclusions of law and, on appeal, the appellant failed to attack the facts found as set forth in Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966). The issue involved in defendants’ appeal was a question of law. It was based on the trial court’s order that the statute was unconstitutional and the indictment be quashed and dismissed. All that we have before us is an indictment, a motion to dismiss and an order of dismissal. Plain and fundamental error apparent on the face of this record, even though not assigned, will be considered by an appellate court. State v. Apodaca, 42 N.M. 544, 82 P.2d 641 (1938).