The prevailing opinion is correct in directing a reversal of the order of the trial court quashing the criminal information filed below. The holding that the statute in question is unconstitutional as denying to an accused due process of law under the Fourteenth Amendment to the Constitution of the United States is plainly erroneous. It convicts the legislature of sheer stupidity to hold that in enacting 1941 Comp. § 41-4519, it intended to authorize punishment of the innocent and well intentioned along with the venal and criminally disposed. The element of fraudulent intent necessarily is to be read into the statute and so construed, it is perfectly valid. State v. Shedoudy, 45 N.M. 516, 118 P.2d 280; State v. Nance, 32 N.M. 158,252 P. 1002; *Page 22 Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181. United States v. P. Koenig Coal Co., 270 U.S. 512, 46 S. Ct. 392,70 L. Ed. 709.
Every accused who, over the past quarter of a century, approximately, has served time following conviction under this statute, will be made none the happier to learn the whole proceeding was a nullity. All now in prison after similar convictions under the statute should forthwith be given their freedom in an effort to make such atonement as the state presently can for the wrong inflicted. Resurrection of the old statute, repealed by the law enacting the one here challenged, if correctly accomplished on the theory employed by the majority, neither softens nor palliates the sting of unwarranted convictions under the one now stricken down. These unfortunate consequences all rest on the majority conclusion that the statute is no good. In my opinion, it is good. Hence, the untoward consequences mentioned in no way disturb me.
How much better to appraise the questioned statute on an assumption of legislative care and competence, rather than under an imputation of stupidity or carelessness, and so viewed, endeavor to find reason and purpose in its enactment. Thus considered, a perfectly logical legislative enactment emerges. Granting that under the law repealed, "entrustment" and existence of a "fiduciary relationship" are elements of the crime of embezzlement, Code 1915, § 1543, what is to prevent the legislature in the exercise of its undoubted power to define and declare public offenses and prescribe the punishment therefor (State v. Boloff, 138 Or. 568, 4 P.2d 326, 7 P.2d 775, and Sheehan v. Superintendent of Concord Reformatory, 254 Mass. 342,150 N.E. 231) from broadening the scope of the offense? None can question that it is an immoral act for one in possession of the property of another, regardless of how such possession came about, to convert same to his own use with fraudulent intent. The legislature says it shall constitute the crime of embezzlement. Neither principle nor precedent deny its power to do so. Both repudiate our right to say it cannot.
The trial court should be instructed to overrule the motion to quash and proceed with the trial of defendant. The majority having concluded otherwise,
I dissent. *Page 23