State v. Lucero , 87 N.M. 242 ( 1975 )

OPINION

HERNANDEZ, Judge.

Defendant was indicted for violation of Section 40A-6-1, N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.) which reads in pertinent part as follows:

“A. As used in this section: (1) 'child’ means a person who has not reached his age of maj ority;

“C. Abuse of a child consists of a person knowingly, intentionally or negligently and without justifiable cause, causing or permitting a child to be: * * * (2) tortured, cruelly confined or cruelly punished; * * * Whoever commits abuse of a child is guilty of a fourth degree felony, unless the abuse results in the child’s death or great bodily harm, in which case he is guilty of a second degree felony.”

The trial court granted the defendant’s motion to dismiss the indictment on the ground that § 40A-6-1, supra, was unconstitutional. The Order stated the following as grounds for dismissal:

“ * * * the statute makes no distinction among intentional, knowing or negligent acts and makes no provision for lesser included offenses or degrees of offense according to the degree of culpability of the defendant, as do other criminal statutes of a similar nature which cover similar kinds of prohibited behavior, and that the statute thus denies defendants equal protection of the laws * * * ”

The state appeals alleging that the trial court erred in holding § 40A-6-1, supra, unconstitutional. We reverse.

This section is of a kind often classified as a “strict liability,” or “liability without fault” statute. See Harring, “Liability Without Fault”, 1970 Wis.L.R. 1201 (1970). A strict liability statute is one which imposes criminal sanction for an unlawful act without requiring a showing of criminal intent. As can be seen, this section not only makes the intentional abuse of a child a wrongful act; it also condemns the negligent abuse of a child as well. The usual rationale for such statutes is that the public interest in the matter is so compelling or that the potential for harm is so great that the interests of the public must override the interests of the individual. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

However, “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). Or as Justice Murphy stated in his dissent to U. S. v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943): “It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who * * * has no evil intention or consciousness of wrongdoing.” But as pointed out in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959): “Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter * * * [though] there is precedent in this Court that this power is not without limitations.” See, § 40A-9-3, N.M.S.A.1953 (2d Repl.Vol. 6, 1973 Supp.); § 40A-9-4, N.M. S.A.1953 (2d Repl.Vol. 6 1973 Supp.); § 40A-6-3, N.M.S.A.1953 (2d Repl.Vol. 6) and Church v. Terr., 14 N.M. 226, 91 P. 720 (1907) and State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949); § 40A-7-3, N.M.S.A. 1953 (2d Repl.Vol. 6); § 40A-7-5, N.M.S.A. 1953 (2d Repl.Vol. 6).

The courts of this State have long adhered to the common law tradition that criminal intent is an essential element of every crime unless the Legislature expressly declares otherwise. Our most cited case on this matter is State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962):

“Whether a criminal intent is to be regarded as essential is a matter of construction. [Citations Omitted.] ‘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. [Citations Omitted.] 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.’ [Citations Omitted.]”

And in State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969) it was said:

“The Legislature is the proper branch of government to determine what behavior should be proscribed under the police power, and, thus, to define crimes and provide for their punishment. [Citations Omitted.] A statute is sustainable as a proper exercise of that power only if the enactment is reasonably necessary to prevent manifest or anticipate evil, or is reasonably necessary to preserve the public health, safety, morals or general welfare. * * * [Citations Omitted.]”

The obvious public interest to be served by § 40A-6-1, supra, is the prevention of cruelty to children. That this is a legitimate as well as a laudable purpose within the police power of the State is equally obvious.

Whether an act prohibited by § 40A-6-1, supra, is committed intentionally, knowingly or negligently is immaterial. The Legislature has the authority to make a negligent act a crime as well as an intentional one.

The next question that should be considered, then, is whether the means chosen to achieve this acknowledged lawful result violate the United States or New Mexico constitutions by creating an arbitrary classification which will cause “invidious discrimination.” The equal protection clause “constitute [s] a guaranty that all persons subject to state legislation shall be treated alike under similar circumstances and conditions in privileges conferred and liabilities imposed. [It] guarantee^] . only the protection enjoyed by other persons or classes in the same place or situation and under like circumstances. [Citations Omitted.]” State v. Thompson, 57 N.M. 459, 260 P.2d 370 (1953).

The classic formulation of the test for determining whether an enactment violates the equal protection clause of either the United States or New Mexico constitutions is found in McGowan v. Maryland, 366 U. S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” 366 U.S. at 426, 81 S.Ct. at 1105. See also Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed. 2d 1485 (1957). The alleged discrimination herein is that the statute makes a distinction between those persons who batter a child and those persons who batter an adult.

The set of facts that justify this distinction is that children, who are often times defenseless, are in need of greater protection than adults. A stricter penalty is one means of attaining this greater degree of protection. See Sections 40A-6-3, 40A-9-3, 40A-9-4, supra; State v. McKinley, supra; State v. Gunter, 529 P.2d 297 (Ct.App. 1974). This is a mark of our civilization. Unfortunately, the veneer of civilization is pitifully thin and even non-existent in some individuals. The class of offenders created by § 40A-6-1, supra, is reasonable and is related to the objectives of the statute.

We, therefore, vacate the order appealed from and remand this cause to the trial court with instructions to reinstate it on its trial calendar.

It is so ordered.

HENDLEY, J., concurs. SUTIN, J., dissents.