STATE V. AUSTIN, 1969-NMCA-095, 80 N.M. 748, 461 P.2d 230 (Ct. App. 1969)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
LEON AUSTIN, Defendant-Appellant
No. 359
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-095, 80 N.M. 748, 461 P.2d 230
September 19, 1969
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, NASH, Judge
Motion for Rehearing Denied October 28, 1969
COUNSEL
JAMES A. MALONEY, Attorney General, Santa Fe, New Mexico, OLIVER H. MILES, Asst. Atty. Gen., Attorneys for Plaintiff-Appellee.
WARREN F. REYNOLDS, Easley & Reynolds, Hobbs, New Mexico, Attorney for Defendant-Appellant.
JUDGES
HENDLEY, Judge, wrote the opinion.
WE CONCUR:
Waldo Spiess, C.J., Joe W. Wood, J.
OPINION
{*749} HENDLEY, Judge.
" UNLAWFUL TAKING OF A VEHICLE. -- (a) Any person who shall take any vehicle intentionally and without consent of the owner thereof shall be guilty of a felony. The consent of the owner of the vehicle to its taking shall not in case be presumed or implied because of such owner's consent on a previous occasion to the taking of such vehicle by the same or a different person."
"THE STATUTE UNDER WHICH THE DEFENDANT WAS CHARGED AND CONVICTED IS UNCONSTITUTIONAL BECAUSE IT DOES NOT REQUIRE THE FINDING OF ANY CRIMINAL INTENT AND INNOCENTLY CONVERTED ANOTHERS [sic] AUTOMOBILE."
"* * * [W]here the alleged unconstitutional character of a statute concerns a matter of evidence, rather than the offense {*750} itself, the constitutional question cannot be raised for the first time on appeal. But in this case a different proposition is involved. Here the question of the constitutionality of the act involved determines whether a crime has been committed. If the law is void, no crime has been committed and none can be committed under it, and the court has no jurisdiction over the person of the defendant or the subject-matter of the cause. It is a proceeding to punish a man where there is no law authorizing the same. In such a case it would seem that the question is jurisdictional and may be raised for the first time on appeal, and we so hold."
"'Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it. State v. Blacklock, 23 N.M. 251, 167 P. 714; Smith v. State, 223 Ala. 316, 136 So. 270; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; Youngs Rubber Corp. v. C. I. Lee & Co., 2 Cir. 45 F.2d 103. But the legislature may forbid the doing of an act and make its commission criminal, without regard to the intent with which such act is done; but in such case it must clearly appear from the Act (from its language or clear inference) that such was the legislative intent. Masters v. United States, 42 App.D.C. 350, Ann. Cas. 1916A, 1243.'"
"* * * courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as 'felonious intent,' 'criminal intent,' 'malice aforethought,' 'guilty knowledge,' 'fraudulent intent,' 'willfulness,' 'scienter,' to denote guilty knowledge, * * *."
Compare State v. Craig, supra.
WE CONCUR:
Waldo Spiess, C.J., Joe W. Wood, J.