{ "id": 2777575, "name": "STATE of New Mexico, Plaintiff-Appellant, v. John M. MARCHIONDO and Joe Ferris, Defendants-Appellees", "name_abbreviation": "State v. Marchiondo", "decision_date": "1973-10-10", "docket_number": "No. 1031", "first_page": "627", "last_page": "631", "citations": [ { "type": "official", "cite": "85 N.M. 627" }, { "type": "parallel", "cite": "515 P.2d 146" } ], "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": "59 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589292 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0284-01" ] }, { "cite": "78 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321896 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0471-01" ] }, { "cite": "47 N.M. 22", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562265 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/nm/47/0022-01" ] }, { "cite": "407 U.S. 104", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136789 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0104-01" ] }, { "cite": "80 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361012 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0382-01" ] }, { "cite": "405 U.S. 156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11721589 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0156-01" ] }, { "cite": "83 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334932 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/83/0458-01" ] }, { "cite": "42 N.M. 544", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569673 ], "weight": 2, "year": 1938, "opinion_index": 1, "case_paths": [ "/nm/42/0544-01" ] }, { "cite": "76 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501379 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0225-01" ] }, { "cite": "70 N.M. 226", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2849709 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/nm/70/0226-01" ] }, { "cite": "80 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361811 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0663-01" ] }, { "cite": "85 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773452 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/nm/85/0234-01" ] } ], "analysis": { "cardinality": 636, "char_count": 12692, "ocr_confidence": 0.755, "pagerank": { "raw": 3.656845619521621e-07, "percentile": 0.890332023218342 }, "sha256": "ba22586b98b36c77326d140405a5b1b0e5a3aa6af50a85039875e171e4b26705", "simhash": "1:3f4d9ee2345c9cf8", "word_count": 2028 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J., concurs.", "SUTIN, J., specially concurring." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. John M. MARCHIONDO and Joe Ferris, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nDefendants were charged by indictment with violation of \u00a7 40A-19-3(F), N.M.S.A. 1953 (2d Repl.Vol. 6). Defendants\u2019 motion to quash the indictment was granted and the State appeals pursuant to Supreme Court rule 5(4) (\u00a7 21-2-1(5) (4), N.M.S.A. 1953 (Repl.Vol. 1970)).\nThe trial court order quashing the indictment held that \u00a7 40A-19-3, supra, was unconstitutional and found, in part:\n\u201c1. That Section 40A-19-3(E) [N.M. S.A. 1953 (2d Repl.Vol. 6)] proscribes as a felony the activities defined as a petty misdemeanor in Section 40-19-2(D), and by virtue thereof, there exists unconstitutional uncertainty as to the punishment of violation of either.\n\u201c2. That the Defendants are charged with violation of Section 40-19-3 (F) which attempts to impose felony punishment of activity fundamentally identical to the activities proscribed as a petty misdemeanor in Section 40A-19^1(B), and as such there exists an unconstitutional vagueness and uncertainty regarding punishment for the commission of that activity.\n\u201c3. That the total intent of the legislature in regulating general gambling activity throughout the state can not be carried out by severing any section of N.M.S.A.Comp. Section 40A-19-3, and by reason thereof, no sub-section of such statute is severable from the remainder of such statute.\u201d\nWe hold that the trial court\u2019s finding number 2 with respect to the constitutionality of \u00a7 40A-19-3(F), supra, is in error. Section 40A-19-3(F), supra, provides in part:\n\u201cCommercial gambling consists of either:\nifi ift j}: jf:\n\u201cF. setting up for use, for the purpose of gambling or collecting the proceeds of, any gambling device.\u201d\nThe section further provides that a violation of this subsection is a fourth degree felony. Section 40A-19-4(B), N.M.S.A. 1953 (2d Repl.Vol. 6) provides in part:\n\u201cPermitting premises to be used for gambling consists of:\n\u00edj\u00ed >}C 5j\u00a3 if\u00ed i{i\n\u201cB. knowingly permitting a gambling device to be set up for use for the purpose of gambling in a place under his control.\u201d\nDefendants\u2019 contention that \u00a7 40A-19-3(F), supra, is void for vagueness and uncertainty is without merit. A statute violates due process if it \u201c. is so vague that persons of common intelligence must necessarily guess at its meaning.\u201d State v. Orzen, 83 N.M. 458, 493 P.2d 768 (Ct.App.1972). The vagueness doctrine is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed activity. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).\nA common sense reading of the two statutes demonstrates to us that \u00a7 40A-19-3(F), supra, requires a positive act by an accused relating to. commercial gambling, whil\u00e9 \u00a7 40A-19-4(B), supra, connotes mere passive acquiescence in permitting a \u201c . . . gambling device to be set up for use for the purpose of gambling in a place under his control.\u201d Each statute relates to a different activity. Permitting a gambling device to be set up and to set up a gambling device are not identical acts; an individual could not be held accountable under both sections for the same act. See State v. Gleason, 80 N.M. 382, 456 P.2d 215 (Ct.App.1969).\nDefendants further contend that the term \u201cgambling device\u201d as defined in \u00a7 40A-19-1 (C), N.M.S.A.1953 (2d Repl.Vol. 6) is vague. That section states:\n\u201cC. \u201cGambling device\u201d means a contrivance which, for a consideration, affords the player an opportunity to obtain anything of value, the award of which is determined by change, even though accompanied by some skill and whether or not the prize is automatically paid by the device; . . . \u201d\nDefendants argue that since gambling is not defined, a television set or a gun could be in \u201cthe category of gambling devices.\u201d We disagree. Words used in a statute are to be given their ordinary and usual meaning unless a different intent is clearly indicated. State v. Orzen, supra. No contrary intent appearing in the statute, the ordinary and usual meaning is clear, that is, those devices which are normally associated with gambling. Gambling device is defined with acceptable clarity, given the legislative dilemma of drafting criminal statutes general enough to escape legalistic evasion while specific enough to give fair warning of proscribed conduct. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) and Giomi v. Chase, 47 N.M. 22, 132 P.2d 715 (1942).\nWe did not consider defendants\u2019 arguments that \u00a7\u00a7 40A-19-3(F), supra, and 40A-19-4(B), supra, are void for vagueness because they provide different punishment for the same act since we have previously determined the two statutes don\u2019t relate to the same activity.\nBecause the trial court\u2019s finding number 2 indicates and the briefs of both parties concede that defendants were charged with a violation of \u00a7 40A-19-3(F), supra, we conclude that defendants have no standing to challenge \u00a7 40A-19-3(E), supra, and \u00a7 40A-19-2(D), supra. The trial court\u2019s conclusion that these two subsections are unconstitutionally vague was erroneous because of the defendants\u2019 lack of standing. Defendants may not challenge the constitutionality of a statute or a portion of a statute under which they have not been charged. We do not review hypothetical or academic questions. The constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967); State v. Klantchnek, 59 N.M. 284, 283 P.2d 619 (1955).\nHaving ruled on the trial court's findings numbers one and two as we have, we need not reach the issue of the severability of the statute.\nReversed and remanded with directions to set aside the trial court\u2019s order to quash the indictment and reinstate the matter on the trial docket.\nIt is so ordered.\nHENDLEY, J., concurs.\nSUTIN, J., specially concurring.", "type": "majority", "author": "HERNANDEZ, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nI agree with the result reached. I disagree with the majority opinion that \u201cDefendants may not challenge the constitutionality of a statute or a portion of a statute under which they have not been charged.\u201d Defendants have standing. See dissent, State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (1973).\nDefendants were charged with commercial gambling contrary to \u00a7 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.\nThe State believed defendants had standing to challenge the constitutionality of the entire section. Its brief was devoted solely to this constitutional issue.\nUnconstitutional vagueness is determined by considering the statute as a whole. This includes the penalty provision of a criminal statute. The \u201cvagueness\u201d rule is set forth in State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969).\nThe first challenge to meet is the alleged conflict in punishment set forth in \u00a7 40A-19-3(E), supra, and \u00a7 40A-19-2(D). These provisions concern lotteries. Section 40A-19-3(E) provides:\nCommercial gambling consists of either: ******\nE. 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]\n******\nWhoever commits commercial gambling is guilty of a fourth degree felony. [Emphasis added]\nSection 40A-19-2(D) provides:\nGambling consists of:\nD. possessing facilities with intent to conduct a lottery.\nWhoever commits gambling is guilty of a petty misdemeanor. [Emphasis added]\nSection 40A-19-1(B) defines \u201cLottery\u201d.\nB. \u2018Lottery\u2019 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, \u2018consideration\u2019 means anything of pecuniary value required to be paid to the promoter in order to participate in such enterprise;\nSection 40A-19-6 provides for permissive lottery applicable to (1) church, public library or religious society; (2) motion picture theaters; and (3) county fair.\nIt is clear and unequivocal that if a person is convicted of \u201ccommercial gambling\u201d under the above statute, he is guilty of a fourth degree felony. If he is convicted of \u201cgambling\u201d under the above statute for the identical charge, i. e., \u201cpossessing facilities with intent to conduct a lottery\u201d, 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\u2019 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 \u201cdid unlawfully engage in commercial gambling\u201d contrary to \u00a7 40A-19-3, supra.\nDefendants contend that both sections supra \u201cdie for want of certainty as to punishment.\u201d No authority is cited. I disagree. There is no want of certainty. The difference between \u201ccommercial gambling\u201d and \u201cgambling\u201d depends upon the facts in each case. No definition of \u201ccommercial gambling\u201d has been found. Used in its ordinary sense, the words mean gambling as a business operation, having financial profit as its primary aim. \u201cGambling\u201d as used in \u00a7 40A-19-2, supra, contemplates participation in a single event. \u201cGambling\u201d is not as violative of public morals as \u201ccommercial gambling\u201d. 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 \u201cthat 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\nIn any event, the trial court\u2019s finding that \u201cthere exists unconstitutional uncertainty as to the punishment of violation of either\u201d statute does not find support in law.\nThe second challenge to meet is the alleged conflict in punishment set forth in \u00a7 40A-19-3(F) and \u00a7 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.\nThe legislature was clear and unequivocal in identifying two prohibited acts \u2014 \u25a0 gambling and commercial gambling.\nThe third challenge to meet is whether the total intent of the legislature in regulating general gambling activity prevents severing any subsection of \u00a7 40A-19-3, supra. This issue would arise if there was \u201cunconstitutional vagueness and uncertainty regarding punishment\u201d. 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).\nDefendants further contend that the State failed in its brief to attack the trial court\u2019s finding No. 2 set forth in the majority opinion. Therefore, they contend, the State should be bound by the trial court\u2019s determination. No authority is cited. The State\u2019s position in its brief was directed primarily against the trial court\u2019s 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 \u201cfinding\u201d was in effect a \u201cconclusion\u201d 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\u2019 appeal was a question of law. It was based on the trial court\u2019s 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).", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "David L.'Norvell, Atty. Gen., Jay F. Rosenthal, Special Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.", "Robert N. Singer, Coors, Singer & Broullire, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "515 P.2d 146\nSTATE of New Mexico, Plaintiff-Appellant, v. John M. MARCHIONDO and Joe Ferris, Defendants-Appellees.\nNo. 1031.\nCourt of Appeals of New Mexico..\nOct. 10, 1973.\nDavid L.'Norvell, Atty. Gen., Jay F. Rosenthal, Special Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nRobert N. Singer, Coors, Singer & Broullire, Albuquerque, for defendants-appellees." }, "file_name": "0627-01", "first_page_order": 689, "last_page_order": 693 }