{ "id": 2765468, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Tony Frank MASCARENAS, Defendant-Appellant", "name_abbreviation": "State v. Mascarenas", "decision_date": "1972-07-28", "docket_number": "No. 887", "first_page": "153", "last_page": "159", "citations": [ { "type": "official", "cite": "84 N.M. 153" }, { "type": "parallel", "cite": "500 P.2d 438" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "82 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334368 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0408-01" ] }, { "cite": "78 N.M. 529", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0529-01" ] }, { "cite": "79 N.M. 502", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737258 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0502-01" ] }, { "cite": "19 L.Ed.2d 613", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "88 S. Ct. 582", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "389 U.S. 999", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11407555, 11407620, 11407436, 11407378, 11407477 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0999-04", "/us/389/0999-05", "/us/389/0999-02", "/us/389/0999-01", "/us/389/0999-03" ] }, { "cite": "78 N.M. 385", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325221 ], "weight": 8, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0385-01" ] }, { "cite": "83 N.M. 626", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333038 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0626-01" ] }, { "cite": "82 N. M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 5, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "81 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360257 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0556-01" ] }, { "cite": "80 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360046 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/80/0426-01" ] }, { "cite": "82 N.M. 144", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328966 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0144-01" ] }, { "cite": "398 U.S. 30", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169271 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/398/0030-01" ] }, { "cite": "79 N.M. 258", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736499 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0258-01" ] }, { "cite": "41 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 1 }, { "cite": "220 Ind. 165", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1693699 ], "year": 1942, "opinion_index": 1, "case_paths": [ "/ind/220/0165-01" ] }, { "cite": "23 Utah 2d 365", "category": "reporters:state", "reporter": "Utah 2d", "case_ids": [ 8866411 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/utah-2d/23/0365-01" ] }, { "cite": "384 P.2d 967", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10578253 ], "opinion_index": 1, "case_paths": [ "/p2d/384/0967-01" ] }, { "cite": "164 N.W.2d 712", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1968, "opinion_index": 1 }, { "cite": "13 Mich.App. 469", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2052970 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/mich-app/13/0469-01" ] }, { "cite": "155 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "306 F.Supp. 802", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3049949 ], "opinion_index": 1, "case_paths": [ "/f-supp/306/0802-01" ] }, { "cite": "479 P.2d 486", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10560552 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/p2d/479/0486-01" ] }, { "cite": "8 St. Louis U.L.J. 59", "category": "journals:journal", "reporter": "St. Louis U. L.J.", "year": 1963, "pin_cites": [ { "page": "99" } ], "opinion_index": 1 }, { "cite": "20 A.L.R. 1527", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1921, "opinion_index": 1 }, { "cite": "202 P. 988", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 1 }, { "cite": "27 N.M. 477", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842554 ], "year": 1921, "opinion_index": 1, "case_paths": [ "/nm/27/0477-01" ] }, { "cite": "53 Or. 304", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4450704 ], "weight": 3, "year": 1909, "opinion_index": 1, "case_paths": [ "/or/53/0304-01" ] }, { "cite": "159 A.2d 541", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1960, "opinion_index": 1 }, { "cite": "191 Pa.Super. 602", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 747425 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/pa-super/191/0602-01" ] }, { "cite": "102 A.2d 239", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1954, "opinion_index": 1 }, { "cite": "175 Pa. Super. 10", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 720750 ], "year": 1954, "opinion_index": 1, "case_paths": [ "/pa-super/175/0010-01" ] }, { "cite": "47 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562219 ], "weight": 3, "year": 1943, "opinion_index": 1, "case_paths": [ "/nm/47/0140-01" ] }, { "cite": "80 N.M. 190", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363746 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0190-01" ] }, { "cite": "58 N.M. 102", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587690 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/nm/58/0102-01" ] }, { "cite": "53 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580741 ], "weight": 4, "year": 1949, "opinion_index": 1, "case_paths": [ "/nm/53/0106-01" ] }, { "cite": "83 N.M. 490", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333994 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/83/0490-01" ] } ], "analysis": { "cardinality": 988, "char_count": 19830, "ocr_confidence": 0.689, "pagerank": { "raw": 4.5504841351214836e-07, "percentile": 0.9244782224755188 }, "sha256": "335361e20001f77119e9e2ee71591269d9ebd19f0c87b1e0819848f752a1cadc", "simhash": "1:16dcb5c2f8bf6871", "word_count": 3267 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "SUTIN, J., specially concurring." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Tony Frank MASCARENAS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe dispositive issue involves the constitutional right to a speedy trial. N. M.Const. Art. II, \u00a7 14. Whether this right has been denied depends on the reasonableness of the particular delay. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L. Ed.2d 26 (1970), concurring opinion of Justice Brennan. In judging reasonableness, this court has looked to four factors: length of the delay; the reason for it; prejudice to the defendant; and waiver by the accused of the right. State v. Baca, 82 N.M. 144, 477 P.2d 320 (Ct.App.1970); compare Dickey v. Florida, concurring opinion, supra. We consider each of these factors.\nLength of the delay.\nDefendant was arrested on May 6, 1970, although no criminal complaint was issued until May 20, 1970. Preliminary hearing was not held until October 16, 1970. The criminal information was filed October 26, 1970. He was tried August 19, 1971. Except for a period of approximately four weeks, he was incarcerated in either the Taos County jail or the State Penitentiary from the date of arrest to date of trial, a period of incarceration of approximately 446 days. The delay from arrest until trial exceeds 15 months. The delay from filing of the information until trial is one week short of 10 months.\nIn State v. Adams, 80 N.M. 426, 457 P.2d 223 (Ct.App.1969), we held that an interval between arrest and trial of 144 days, without more, did not amount to the denial of the right to a speedy trial. See also State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970). In State v. Crump, 82 N. M. 487, 484 P.2d 329 (1971), a delay of 14 months between indictment and trial did not deny the right to a speedy trial where defendants fled the jurisdiction and was imprisoned in another state. There, defendant\u2019s own activities contributed to the delay. These decisions must be considered in relation to \u00a7 21-1-1(95), N.M.S.A.1953 (Repl.Vol. 4, Supp.1971) which provides that trial shall commence within six months of the date of filing of the information unless extended by court order. Although this rule is not applicable to this case, it expresses the policy of the New Mexico Supreme Court as to an acceptable length of delay. See State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073 (1972).\nHere, we have a delay of four months in excess of the policy expressed in \u00a7 21-1-1(95), supra, and a 15 month delay between arrest and trial. The 15 month delay is contrary to the purpose of the right to speedy trial because one of the purposes of that right is to prevent undue incarceration prior to trial. State v. Crump, supra.\nThe reason for the delay.\nThe right to a speedy trial is a relative right consistent with delays. The essential ingredient of this right is orderly expedition of the criminal process. Raburn v. Nash, 78 N.M. 385, 431 P.2d 874 (1967), cert. dismissed, 389 U.S. 999, 88 S. Ct. 582, 19 L.Ed.2d 613 (1967); State v. Adams, supra; see State v. Crump, supra.\nThus, where a defendant causes or contributes to the delay, or consents to the delay, he may not complain of a denial of the right. Raburn v. Nash, supra; State v. McCroskey, 79 N.M. 502, 445 P.2d 105 (Ct.App.1968). The State does not claim that defendant caused, contributed or consented to the delay.\n\u201c * * * The accused has no duty to bring on his trial. He is presumed innocent until proved guilty * * *. The government, on the other hand, would seem to have a responsibility to get on with the prosecution, both out of fairness to the accused and to protect the community interests in a speedy trial. * * * \u201d Dickey v. Florida, concurring opinion, supra. The record indicates that the efforts of the District Attorney in this case were to ask the District Judge (not the one who presided at the trial) every two or three months for \u201ca jury to try cases\u201d and to furnish the judge a general list of cases. With this sparse explanation, we cannot say that this case \u201c * * * was moving at a designedly deliberate pace consistent with * * * \u201d the right to a speedy trial. State v. Adams, supra. Specifically, there is nothing showing an orderly expedition of the criminal process.\nPrejudice to defendant.\nAlthough New Mexico decisions consider the factor of \u201cprejudice to defendant\u201d and infer that the defendant has the burden of demonstrating prejudice, none have expressly placed that burden on the defendant. See State v. Crump, supra; State v. Baca, supra; State v. Adams, supra. If the burden is upon the defendant, this procedure departs from the approach utilized in other situations.\nUnder standards of due process, unauthorized communications with jurors are presumptively prejudicial and defendant does not have the burden of establishing the existence of prejudice. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967). Where a prior incriminating statement was inadmissible, a subsequent incriminating statement was presumptively inadmissible and the State had the burden of establishing that the subsequent statement was not the exploitation of the prior statement. State v. Dickson, 82 N.M. 408, 482 P.2d 916 (Ct.App.1971).\nConsidering the approach in Gutierres and Dickson, in relation to the policy disclosed in \u00a7 21-1-1(95), supra, in our opinion the delays shown by this record were presumptively prejudicial and the State had the burden of demonstrating an absence of prejudice to defendant by these delays. Compare Dickey v. Florida, concurring opinion, supra.\nEven if the defendant did have the burden of demonstrating prejudice, we hold that defendant\u2019s showing, which is not contradicted, was sufficient. This showing is the extent of the delays \u2014 the 15 month and 10 month intervals previously identified. These delays demonstrate, prima facie, an undue incarceration prior to trial and, thus, establish a prima facie violation of the right to speedy trial. This prima facie showing of prejudice is not contradicted.\nThus, whether the delay was presumptively prejudicial or whether the delay was a prima facie showing of undue incarceration, prejudice to defendant is not contradicted.\nWaiver by the accused.\nRaburn v. Nash, supra, applied the majority rule \u201c * * * that absent extreme circumstances a defendant may not be heard to complain unless he has affirmatively made known his desire for a speedy trial. * * * \u201d This approach was followed in State v. Ford, supra, and State v. Adams, supra. This \u201cdemand\u201d requirement is based on the concept of waiver by defendant\u2019s inaction, Raburn v. Nash, supra, and has been called \u201cacquiescence\u201d in the delay, see State v. McCroskey, supra.\nRaburn v. Nash, supra, noted a minority that \u201c * * * hold it is not incumbent upon an accused to take affirmative action or demand trial. * * * It will, however, be noted that most of those states have mandatory statutes requiring dismissal unless the accused is brought to trial within a specified period. * * * \u201d New Mexico now has a mandatory requirement in \u00a7 21-1-1(95), supra. See State ex rel. Delgado v. Stanley, supra. Because this case was initiated prior to the effective date of the mandatory requirement, \u00a7 21-1-1(95), supra, does not apply. However, the policy expressed in \u00a7 21-1-1(95), supra, weakens the rule applied in Raburn v. Nash, supra, and supports the view that six months after the filing of the information, a demand might no longer be required and the concept of waiver might not be applied after the six month period is passed.\nThe concept of waiver by inaction has been criticized. This criticism is based on the definition of waiver\u2014an intentional, abandonment of a known right\u2014and the fact that the concept requires a defendant to take affirmative action to preserve a right accorded him by the Constitution. See Dickey v. Florida, concurring opinion, supra. Yet, citation of authority is not required to support the fact that the concept of waiver is firmly established in New Mexico by numerous appellate decisions.\nAccordingly, we do not resolve this factor on the basis of whether the concept of waiver should or should not be utilized. Our approach is to recognize the concept, but also recognize that the \u201cdemand\u201d necessary to avoid a waiver is not applicable in \u201cextreme circumstances.\u201d Raburn v. Nash, supra. The 15 month delay approaches the extreme in this case when the Slate offered nothing to explain the delay.\nIn our opinion, we need not decide whether any one of the factors is controlling. We reach our decision by considering all of the factors. Here, there is a showing of delay for which the defendant, is not responsible. The State has offered no explanation for the delay. This delay, together with incarceration for all but four weeks of the period of delay, either required the State to show an absence of prejudice, or stood as an unrebutted prima facie showing of prejudice and, unexplained, amounted to an extreme circumstance to which the concept of waiver doesn\u2019t apply. From this combination of factors, we hold that defendant was deprived of his constitutional right to a speedy trial.\nDefendant provided two or three quarts of beer to minors and was convicted of contributing to the delinquency of a minor. Section 40A-6-3, N.M.S.A.1953 (Repl.Vol. 6). Having been denied his constitutional right to a speedy trial, the conviction is reversed. The cause is remanded with instructions to dismiss the charge.\nIt is so ordered.\nHERNANDEZ, J., concurs.\nSUTIN, J., specially concurring.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI concur with the result in the majority opinion. We cannot condone the state\u2019s conduct which so delays a defendant\u2019s right to a speedy trial that it violates Article II, \u00a7 14 of the New Mexico Constitution.\nTo me, an important point to decide is the constitutionality of the statute under which defendant was convicted.\nA. Section 40A-\u00d3-3, N.M.S.A.1953 (Repl. Vol. 6), Contributing to Delinquency Act is Unconstitutional.\nThe first claimed error raised by defendant was the constitutionality of \u00a7 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.\nThe statute reads as follows:\nContributing to delinquency of minor. \u2014Contributing 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].\nDefendant was charged with contributing to delinquency \u201cBy selling, giving or delivering alcoholic liquor to above minors, Contrary to \u00a7 40A-6-3, N.M.S.A.1953, as amended.\u201d\nThis charge was not contrary to \u00a7 40A-6-3, supra. It was contrary to \u00a7 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).\nA 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).\nA violation of \u00a7 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).\nI know this is a vain attempt to alert district attorneys to carefully scrutinize applicable statutes.\nSection 40A-6-3, supra, was formerly \u00a7 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, \u00a7 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, \u00a7 30-1. It was enacted in similar language without any definitions under the title of \u201cCrimes against Children and Dependents.\u201d Laws 1963, ch. 303, Art. 6. This Act is now \u00a7 40A-6-3, supra, under which defendant was charged.\nA Juvenile Court Act was enacted in 1955. Laws 1955, ch. 205 [\u00a7 13-8-19, et al., N.M.S.A.1953 (Repl.Vol. 3)]. This Act was repealed and a children\u2019s code adopted. Laws of 1972, ch. 97 (\u00a7 13-14 \u2014 1, et al., 1972 Interim Supplement).\nIn 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:\n* * * [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].\nThis is plain error. McKinley was reaffirmed in State v. Roessler, 58 N.M. 102, 266 P.2d 351 (1954).\nThe 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.\nNevertheless, this court in State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969), said:\nAccording to defendant the applicable statute is \u00a7 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].\nIn the present case, we do not assume that \u00a7 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).\nThere is no reference in \u00a7 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\u2019s 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).\nWithout the applicability of \u00a7 13-8-26, supra, we do not know what act or omission of a defendant \u201ctends to cause or encourage the delinquency\u201d of a minor. What is meant by \u201cany person committing any act\u201d ? What is meant by a person \u201comitting the performance of any duty\u201d ? What is meant by \u201cdelinquency\u201d? What is meant by \u201ccontributing to delinquency\u201d ? Does \u201cany person\u201d include parents?\nIn Stroik, the \u201ccontributing to delinquency\u201d was a part of the Juvenile Court Act. The court said:\n\u201cContributing to delinquency\u201d 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].\nFrom \u201can unlimited variety of ways,\u201d 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 \u201chippie,\u201d a hitchhiker, an absentee from church or synagogue, an associate of criminals or reputed criminals, or vicious or immoral persons, etc. ?\nSuppose a person tended to cause or encourage a minor 15 years of age to capture a bullfrog without a valid fishing license, \u00a7 53-2-18, N.M.S.A.1953 (Repl.Vol. 8), or to sell a horned toad, \u00a7 53-2-16, or to injure a songbird, \u00a7 53-2-15, or to sing the national anthem in a public place, \u00a7 41-1904, N.M.S.A.1941, or loitering in a poolroom, \u00a7 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 ?\nHow 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?\nIn State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258 (1909), the court said:\n\u201cDelinquency\u201d was unknown to the common law, for which reason we must look exclusively to the statute for the definition of this offense.\nSection 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:\nWhere 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. * * *\nGeis, Contributing to Delinquency, 8 St. Louis U.L.J. 59, 99 (1963), states:\nIn essence, contributing statutes represent an abdication of legislative responsibility to analyze and respond to itemized aspects of behavior which are stated to be criminal.\nP. 80-81:\nThe federal government manual discussing juvenile court standards also turns its back on the contributing statute: \u201cIt seems sounder,\u201d the manual notes, \u201cto 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.\u201d [Emphasis added].\nSection 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).\nPresently, 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 \u201cvagabonds\u201d and \u201cgypies.\u201d 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). \u201cThe most important thing a father can do for his children is to love their mother.\u201d If fathers did this, parents would not contribute to the delinquency of their children and would prevent other persons from doing it.\nThe time has come for our legislature and courts to cast aside our statute on \u201cContributing to Delinquency\u201d and charge parents and other persons with a criminal offense who lead children into a violation of criminal laws.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Robert Dale Morrison, Mitchell, Mitchell & Alley, Taos, for defendant-appellant.", "David L. Norvell, Atty. Gen., Victor Moss, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "500 P.2d 438\nSTATE of New Mexico, Plaintiff-Appellee, v. Tony Frank MASCARENAS, Defendant-Appellant.\nNo. 887.\nCourt of Appeals of New Mexico.\nJuly 28, 1972.\nRobert Dale Morrison, Mitchell, Mitchell & Alley, Taos, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Victor Moss, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0153-01", "first_page_order": 309, "last_page_order": 315 }