State v. Chenault

¶1OPINION OP THE COURT.

¶2— The appellant was convicted on the following count:

“That William T. Ghenault, late of the county of Roosevelt, in the state of New Mexico, on the 22d da}'' of December, in the 3Tear one thous- and and nine hundred and thirteen, at the county of Roosevelt, in said state of New Mlexico, one -, then and there being a woman and minor, to-wit., of the age of seventeen years, under the care of her parents,--, and-, in said county and state aforesaid, unlawfully and feloniously did have in his possession for evil purposes, to-wit, for the purpose of unlawful sexual intercourse, contrary,” etc.

¶3The statute is as follows:

"Any person or persons who shall entice away and seduce or carry off any woman, who may be a minor under the care of her parents, relations or guardian, such persons who shall so do, or shall have them in their possession for evil purposes, upon complaint of any person, shall be fined,” etc. Section 1349, Comp. Laws 1897.

¶4[1] Counsel for appellant insist that the words "for evil purposes,” as used in this statute, are so vague and indefinite in their meaning that those whose duty it is to execute the criminal laws cannot say with certainty what acts the Legislature thereby intended to penalize. In this connection the language of the Supreme Court of Vermont, in the case of State v. Milliard, 18 Vt. 577, 46 Am. Dec. 170, a prosecution for indecent exposure of the person, strikes us as quite apt:

"No particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and it does not require the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decenc3r, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.”

¶5That the conduct of which appellant stands charged and convicted is rendered criminal by this statute is so indubitably indicated by both common sense and common morality as to make any argument in support of such conclusion wholly superfluous.

¶6[2] Even if admitted that the phrase “unlawful sexual intercourse” describes the act of fornication only, and further that fornication is not criminal, either by the statutes of this state, nor was it at common law, .yet the use of the word "unlawful” is not therefore erroneous.

“‘Unlawful’ does not necessarily mean contrary to law. ‘Un’ is a preposition used indiscriminately, and may mean simply ‘not,’ and ‘unlawful’ may mean simply ‘not authorized by law.’” MacDaniel y. United States, 87 Fed. 324, 30 C. C. A. 670.

¶7Sexual intercourse is either lawful or unlawful, according to the relation of the parties. State v. Whealey, 5 S. D. 427, 59 N. W. 211.

¶8From the record it appears that the exceptions taken to the instructions and refusal to give instructions were filed three days after the trial. They will therefore not be reviewed. Territory v. Lobato, 17 N. M. 666, 134 Pac. 222. We have read the entire record and the instructions •complained of, and find that the issues involved were fairly presented to the jury.

¶9The judgment of the lower court is affirmed.