(specially concurring).
I concur with the result in the majority opinion. We cannot condone the state’s conduct which so delays a defendant’s right to a speedy trial that it violates Article II, § 14 of the New Mexico Constitution.
To me, an important point to decide is the constitutionality of the statute under which defendant was convicted.
A. Section 40A-Ó-3, N.M.S.A.1953 (Repl. Vol. 6), Contributing to Delinquency Act is Unconstitutional.
The first claimed error raised by defendant was the constitutionality of § 40A-6-3, N.M.S.A.1953 (Repl.Vol. 6), the contributing delinquency Act. Defendant claims it is invalid because it is so vague, indefinite and uncertain as to be incapable of interpretation and enforcement. I agree.
The statute reads 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. [Emphasis added].
Defendant was charged with contributing to delinquency “By selling, giving or delivering alcoholic liquor to above minors, Contrary to § 40A-6-3, N.M.S.A.1953, as amended.”
This charge was not contrary to § 40A-6-3, supra. It was contrary to § 46-10-12, N.M.S.A.1953 (Repl.Vol. 7, Supp.1971), selling liquor to minors, but defendant was not charged with this criminal offense. A review of New Mexico opinions in criminal cases amply show that defendants are sometimes mischarged. The state ofttimes overlooks clear and unambiguous criminal statutes. For example, see dissenting opinion, State v. Garcia, 83 N.M. 490, 493 P.2d 975 (Ct.App.1971).
A violation of the Contributing to Delinquency Statute is a fourth degree felony with a penalty of imprisonment for a term of not less than one year nor more than five years, or to the payment of a fine'of not more than $5,000, or to both in the discretion of the judge. Section 40A-29-3(D), N.M.S.A.1953 (Repl.Vol. 6).
A violation of § 46-10-12, supra, is a misdemeanor with a penalty of a fine of no more than $300, or by confinement in jail not more than seven months, or both. Section 46-10-19, N.M.S.A.1953 (Repl.Vol. 7).
I know this is a vain attempt to alert district attorneys to carefully scrutinize applicable statutes.
Section 40A-6-3, supra, was formerly § 13-8-18, N.M.S.A.1953 (Vol. 3). In 1917, it was part of an act defining juvenile delinquents and providing punishment of those who contributed to such delinquency. Laws 1917, ch. 4, § 10. Under the 1917 Act, the district court sat as a juvenile court and exercised jurisdiction. In 1943, the statute was adopted independently of the 1917 juvenile court Act, without any definitions of the words or phrases in the statute. Laws 1943, ch. 36. In 1963, this section was repealed. Laws 1963, ch. 303, § 30-1. It was enacted in similar language without any definitions under the title of “Crimes against Children and Dependents.” Laws 1963, ch. 303, Art. 6. This Act is now § 40A-6-3, supra, under which defendant was charged.
A Juvenile Court Act was enacted in 1955. Laws 1955, ch. 205 [§ 13-8-19, et al., N.M.S.A.1953 (Repl.Vol. 3)]. This Act was repealed and a children’s code adopted. Laws of 1972, ch. 97 (§ 13-14 — 1, et al., 1972 Interim Supplement).
In 1949, the Supreme Court held the 1943 Act constitutional. State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). Justice McGhee dissented. I agree with Justice McGhee. The majority opinion relied on the definitions in the juvenile code and said:
* * * [A]ny 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. * * * FEmphasis added].
This is plain error. McKinley was reaffirmed in State v. Roessler, 58 N.M. 102, 266 P.2d 351 (1954).
The present statute was divorced from the Juvenile Court Act of 1955. When the legislature separated the present statute without reference to the Juvenile Court Act, it intended the present statute to stand on its own two feet.
Nevertheless, this court in State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969), said:
According to defendant the applicable statute is § 13-8-26, N.M.S.A.1953 (Repl. Vol. 3). We assume these contentions are correct. See State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). [Emphasis added].
In the present case, we do not assume that § 13-8-26 is applicable. A juvenile court proceeding is not a criminal proceeding. It is a special statutory proceeding. In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943).
There is no reference in § 40A-6-3, supra, to any other statute for definitions of words and phrases. If there were a reference to the Juvenile Court Act, a defendant could not be convicted of contributing to the child’s delinquency if the jurisdiction of juvenile court did not attach to the child. Commonwealth v. Stroik, 175 Pa. Super. 10, 102 A.2d 239 (1954). See Commonwealth v. Kempisty, 191 Pa.Super. 602, 159 A.2d 541 (1960).
Without the applicability of § 13-8-26, supra, we do not know what act or omission of a defendant “tends to cause or encourage the delinquency” of a minor. What is meant by “any person committing any act” ? What is meant by a person “omitting the performance of any duty” ? What is meant by “delinquency”? What is meant by “contributing to delinquency” ? Does “any person” include parents?
In Stroik, the “contributing to delinquency” was a part of the Juvenile Court Act. The court said:
“Contributing to delinquency” is also a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct. [Emphasis added].
From “an unlimited variety of ways,” can any person, including parents, be prosecuted for tending to cause or encourage the delinquency of a minor who merely grew up in idleness, visited a dram shop, wandered the streets in the nighttime, hooked rides on moving trains, used profane language in public places, or are habitually absent from school, (see In re Santillanes, supra, dissenting opinion), or who became a “hippie,” a hitchhiker, an absentee from church or synagogue, an associate of criminals or reputed criminals, or vicious or immoral persons, etc. ?
Suppose a person tended to cause or encourage a minor 15 years of age to capture a bullfrog without a valid fishing license, § 53-2-18, N.M.S.A.1953 (Repl.Vol. 8), or to sell a horned toad, § 53-2-16, or to injure a songbird, § 53-2-15, or to sing the national anthem in a public place, § 41-1904, N.M.S.A.1941, or loitering in a poolroom, § 41-1003, N.M.S.A.1941, or a number of the old and new criminal statutes of a similar nature. Can any person, including parents, be prosecuted for tending to cause or encourage the delinquency of a minor ?
How vague, indefinite and uncertain can a criminal statute be? Shall each individual criminal charge be left in the hands of any jury called to service?
In State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258 (1909), the court said:
“Delinquency” was unknown to the common law, for which reason we must look exclusively to the statute for the definition of this offense.
Section 40A-6-3, supra, does not give a definition. In State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921), the Supreme Court said:
Where the statute uses words of no determinative meaning, or the language is so general and indefinite as to embrace not only acts commonly recognized as reprehensible, but also others which it is unreasonable to presume were intended to be made criminal, it will be declared void for uncertainty. * * *
Geis, Contributing to Delinquency, 8 St. Louis U.L.J. 59, 99 (1963), states:
In essence, contributing statutes represent an abdication of legislative responsibility to analyze and respond to itemized aspects of behavior which are stated to be criminal.
P. 80-81:
The federal government manual discussing juvenile court standards also turns its back on the contributing statute: “It seems sounder,” the manual notes, “to define the crime with greater certainty and to tie it to an act which constitutes a violation of law or an omission to perform a duty required by law. It is felt that the presently existing criminal statutes define a sufficiently broad variety of crimes to serve as an adequate basis to protect children.” [Emphasis added].
Section 40A-6-3, supra, is unconstitutional. Hanby v. State, 479 P.2d 486 (Alaska 1970); Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802 (U.S.D.C., M.D.Ala.N.D.1969); State v. Crary, 10 Ohio Ops.2d 36, 80 Ohio L.Abst. 417, 155 N.E.2d 262 (C.P.1959); People v. Owens, 13 Mich.App. 469, 164 N.W.2d 712 (1968), dissenting opinion; State v. Gallegos, 384 P.2d 967 (Wyo.1963); State v. Tritt, 23 Utah 2d 365, 463 P.2d 806 (1970), 36 A.L.R.3rd 1283 (1971), dissenting opinion; Stone v. State, 220 Ind. 165, 41 N.E.2d 609 (1942).
Presently, New Mexico has existing criminal statutes sufficient to serve as an adequate basis to protect children. When children leave the moral and legal pathways in life, the cause of the tragedy can be found generally in the gradual decay of domestic life, divorce, separation of parents, casting children about to become “vagabonds” and “gypies.” As a result, New Mexico courts, when concerned with custody of children, have in many cases held that the controlling consideration is the welfare and best interests of the child. Its welfare transcends all other considerations. Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968). “The most important thing a father can do for his children is to love their mother.” If fathers did this, parents would not contribute to the delinquency of their children and would prevent other persons from doing it.
The time has come for our legislature and courts to cast aside our statute on “Contributing to Delinquency” and charge parents and other persons with a criminal offense who lead children into a violation of criminal laws.