¶1(dissenting).
¶2I dissent:
¶3Defendant was found guilty of violating § 30-3-l(C), N.M.S.A.1978. It reads: Assault consists of . .:
¶4******
¶5C. the use of insulting language toward another impugning his honor, delicacy or reputation.
¶6This provision focuses on written or spoken words and is unconstitutional. The constitutional issue was not raised below, but it may be raised for the first time on appeal. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969); State v. Barreras, 64 N.M. 300, 328 P.2d 74 (1958); State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921). The reasons are stated in State v. Armstrong, 85 N.M. 234, 511 P.2d 560 (Ct.App.1973), Sutin, J., dissenting.
¶7At common law a criminal assault was defined as “an attempt to commit violent injury on the person of another.” State v. Martinez, 30 N.M. 178, 190, 230 P. 379 (1924). It does not require citation of authority to show that mere use of words alone does not constitute a criminal assault, however insulting, abusive or violent the words might be. 6 Am.Jur.2d Assault and Battery § 23 (1963); 6A C.J.S. Assault and Battery § 66, p. 434 (1975). See Faubion v. Tucker, 58 N.M. 303, 270 P.2d 713 (1954). There must be an apparent attempt to inflict a battery or bodily contact or harm upon another. 1 Warton’s Criminal Law and Procedure (Anderson) § 329 (1957); 6A C.J.S. Assault and Battery § 64, p. 462; 6 Am.Jur.2d Assault and Battery § 3 (1963). However, where the legislature defines an offense, its definition supersedes the common law.
¶8The question for decision is this:
Can Section 30-3-l(C) be sustained when it omits the essential elements necessary to constitute the crime of assault?
¶9It is obvious that to allow “insulting language” to be an assault means that the legislature can declare “insulting language” to be any type of crime such as a battery, aggravated battery, larceny, abuse of privacy, trespass, or a nuisance. “Insulting language” is not an element of any of such crimes. To denominate an assault as a use of “insulting language” is beyond the police power of the State. To be valid, a penal statute must define the act necessary to constitute an offense with such certainty that a person who violates it must know that his act is criminal when he does it. If the statute is uncertain in its meaning, vague and indefinite, a person charged thereunder is deprived of due process of law. State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948).
¶10What does “insulting language” mean to the average person? What is meant by “impugning his honor, delicacy or reputation”? “Words in statutes are to be given their commonly understood meaning. Language comprises both speech and writing; it is the expression of thought by means of either spoken or written words." [Emphasis added.] State v. Clark, 235 Wis. 628, 294 N.W. 25 (1940); United States v. One Car Load of Corno. H. and M. Feed, 188 F. 453 (D.C.Ala.1911). Black’s Law Dictionary, p. 1022 (Revised Fourth Ed. 1968); 52A C.J.S. p. 385 (1968). It must be noted that “insulting language” is not limited to speech. It includes written words. Under subsection (C), an “assault” can be committed by writing a letter to another with an insulting tone.
¶11Section 30-3-l(C) constitutes a crime if one person in New York writes or telephones another in California and uses “insulting language” that attacks “his honor, delicacy or reputation.” I am not quite sure of what his “delicacy” is, but it must border on “daintiness, frailty, fineness, softness, fragility, sensitivity, finesse, tender feeling, considerations, decency,” etc. Perhaps, it means “delicate treatment.” To attempt to apply “insulting” language would depend upon the nature of the person to whom it is directed.
¶12In the instant case, defendant directed a dirty “cuss” word to his ex-wife. It was M_______f______ In Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972), this word was used four times. The statute declared:
“Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited . . is a disorderly person.”
¶13Rosenfeld was vacated and remanded for reconsideration in light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Gooding involved a statute which declared use of “opprobrious words or abusive language, tending to cause a breach of peace” to be a misdemeanor. This statute was declared to be unconstitutionally vague and broad.
¶14In Plummer v. City of Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973), an ordinance provided that “No person shall abuse another by using menacing, insulting, slanderous, or profane language.” In a per curiam opinion, the court held that the ordinance was facially unconstitutional as being vague and overbroad.
¶15These are 5-4 decisions that may change with the substitution of a “conservative” justice for a “liberal” justice. But we must not forget that even in the 19th century, it was a “lamentable fact that this mode of expression [‘damned son of a bitch’] is of too common use in the country.” Simmons v. State, 23 Tex. 653, 5 S.W. 208, 209 (1887). This language did not come within the meaning of “the law of manslaughter arising upon insulting words used toward a female relative.” A “cuss” word “is rather a sudden expression of anger and contempt . .” [Id. 209.] In the latter part of the 20th century, we must not view profanity or “insulting” language with such squinting eyes that a resort to epithets constitutes an assault, disorderly conduct or a breach of the peace. The use of profane language may, in itself, constitute a violation of law, Baker v. State, 16 Ariz.App. 463, 494 P.2d 68 (1972), but the name of the offense cannot be deleted for purpose of convenience to uphold a conviction. The State cannot prohibit speech merely because the words offend, cause indignation, or anger the addressee. “Here comes the god damn f______ pigs again” did not constitute “fighting words.” State v. Authelet, 385 A.2d 642 (R.I.1978).
¶16Though the statute were constitutional, defendant did not violate it. In the latter part of the 20th century, epithets are of common use in this country. We should not hold a person guilty of an offense because the “cuss” word was shouted in anger. Some added factors are needed to make out a case of assault. Dunning v. State, 156 Tex.Cr.R. 446, 242 S.W.2d 367 (1951). None occurred in this case.