
STATE
V. CLEVE
Docket
No. 24,734
SUPREME
COURT OF NEW MEXICO
127
N.M. 240; 980 P.2d 23; 1999 N.M. LEXIS 86; 1999 NMSC 17; 38 N.M.
St. B. Bull. 15
March
11, 1999, Filed
SUBSEQUENT
HISTORY:
[***1]
Released
for Publication April 6, 1999. As Corrected September 9, 1999.
PRIOR
HISTORY:
ORIGINAL
PROCEEDING ON CERTIORARI. William P. Johnson, District Judge.
DISPOSITION:
Reversed.
COUNSEL:
Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Assistant
Appellate Defender, Santa Fe, NM, for Petitioner.
Hon.
Patricia A. Madrid, Attorney General, Ralph E. Trujillo, Assistant
Attorney General, Santa Fe, NM, for Respondent.
James
R. Scarantino, Albuquerque, NM. Birch, Horton, Bittner and Cherot,
William P. Horn, Douglas S. Burdin, Washington, DC, for Amicus Curiae
Wildlife Conservation Fund of America.
JUDGES: PATRICIO M. SERNA,
Justice. WE CONCUR: PAMELA B. MINZNER, Chief Justice,
JOSEPH F. BACA, Justice,
GENE E. FRANCHINI, Justice.
OPINIONBY:
PATRICIO M. SERNA
OPINION:
[*241] [**24] OPINION
SERNA,
Justice.
Defendant Charles
Cleve appeals the Court of Appeals' affirmance of his two convictions
of cruelty to animals. A jury found Cleve guilty of two counts of
unlawful hunting and two counts of cruelty to animals based on his
killing of two deer. Cleve contends that his actions, while within
the scope of the prohibition against unlawful [**25] [*242] hunting,
are not contemplated by the prohibition against cruelty to animals.
We hold that New Mexico's statute proscribing cruelty [***2] to
animals applies only to domesticated animals and wild animals previously
reduced to captivity. Additionally, we believe it is necessary to
clarify the application of the general/specific statute rule in
New Mexico. Applying this rule, we hold that the comprehensive laws
in New Mexico governing hunting and fishing preempt application
of the cruelty-to-animals statute to the hunting of game animals.
We therefore reverse Cleve's cruelty-to-animals convictions.
I. FACTS
Cleve owns a
one-hundred acre ranch near Elk, New Mexico. At one time, Cleve
maintained a herd of approximately three hundred cows on the land.
Beginning in the early 1970's, however, Cleve began having difficulty
with as many as one hundred deer coming onto his land and destroying
his crops and pastures. As a result, Cleve needed to purchase more
feed and was forced to reduce the number of cows in his herd.
Around 1977,
Cleve began requesting assistance from the New Mexico Department
of Game and Fish (Department) in alleviating his deer problems.
Over the course of approximately twenty years, the Department, through
numerous means, attempted to reduce the number of deer on Cleve's
[***3] property. The Department eventually leased Cleve's property
for two years and used it as a wildlife viewing area. In 1994, the
Department, although recognizing the persistence of the deer problem,
terminated its lease and, the following year, notified Cleve that
it had exhausted its efforts to alleviate his situation.
Three months
after receiving the letter from the Department, faced with a continued
presence of deer on his land and apparently no further outside assistance,
Cleve decided to kill some of the deer. On several occasions, Cleve
shot at the deer on his property. Witnesses reported that Cleve
shot in the direction of a fishing camp, as well as a highway, and
that several bullets
had gone into
the camp area. Cleve shot at least thirteen deer, five in the
abdomen, and snared two others. In one of the snares, a fawn was
caught by the neck and died of strangulation, probably within
about five minutes of being caught. In the other snare, a spike
buck was caught by its antlers and died of either stress-related
fatigue, starvation, or dehydration.
The State charged
Cleve with three counts of negligent use of a deadly weapon, see
NMSA 1978, ß 30-7-4 [***4] (1993), seven counts of cruelty
to animals, see NMSA 1978, ß 30-18-1 (1963), and fifteen
counts of unlawful hunting, see NMSA 1978, ß 17-2-7(A) (1979).
The State relied on the two snared deer and the five deer shot
in the abdomen for the cruelty-to-animals charges. Cleve filed
a motion to dismiss the cruelty-to-animals charges on the ground
that Section 30-18-1 is limited to domesticated animals and does
not contemplate cruelty to game animals. The trial court denied
the motion. The jury found Cleve guilty of two counts of unlawful
hunting, two counts of cruelty to animals, and one count of negligent
use of a deadly weapon. The two snared deer formed the basis for
the convictions of unlawful hunting and the convictions of cruelty
to animals.
Cleve appealed
his conviction of two counts of cruelty to animals to the Court
of Appeals. Cleve argued that game and fish statutes and regulations
preempt application of Section 30-18-1 to game animals. In addition,
Cleve contended that Section 30-18-1 is limited to cruelty committed
against domesticated animals. The Court of Appeals rejected both
of Cleve's arguments and affirmed his convictions. State v. Cleve,
1997 NMCA 113, [***5] PP3-15, 124 N.M. 289, 949 P.2d 672. The
Court of Appeals concluded that the prohibition against unlawful
hunting contained in Section 17-2-7 and the prohibition against
cruelty to animals contained in Section 30-18-1 "exist for different
purposes." Id. P 7. "It is possible to illegally hunt game animals,
but not to have been cruel in killing them. ... Conversely, one
could be convicted of cruelty to animals, but not of unlawful
hunting of game animals." Id. P 8. The Court of Appeals concluded
that "both the cruelty statute and the game and fish laws and
regulations are necessary to fully protect wild animals, and these
two statutes can co-exist." Id. Additionally, the Court of Appeals
[**26] [*243] concluded that game animals must be included within
Section 30-18-1 because to hold otherwise would "leave many animals
unprotected [and] would create an unjust or absurd result." Id.
P 12. We granted Cleve's petition for writ of certiorari to the
Court of Appeals in order to examine the scope of Section 30-18-1
and its relationship to Section 17-2-7 and other laws governing
hunting and fishing, and we now reverse.
II. STANDARD
OF REVIEW AND RULES OF STATUTORY [***6] CONSTRUCTION
Cleve argues
that the trial court and the Court of Appeals misconstrued Section
30-18-1 as being applicable to his snaring of two deer. The "interpretation
of a statute is an issue of law" that is subject to de novo review.
State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
Our ultimate
purpose in the interpretation of a statute is to ascertain and
give effect to the intent of the Legislature. Roth v. Thompson,
113 N.M. 331, 332, 825 P.2d 1241, 1242 (1992). In doing so, we
look first to the plain language of a statute. Wilson v. Denver,
1998 NMSC 16, P16, 125 N.M. 308, 961 P.2d 153. However, "courts
must exercise caution in applying the plain meaning rule. Its
beguiling simplicity may mask a host of reasons why a statute,
apparently clear and unambiguous on its face, may for one reason
or another give rise to legitimate (i.e., nonfrivolous) differences
of opinion concerning the statute's meaning." State ex rel. Helman
v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). As
a result, we must examine the context surrounding a particular
statute, such as its history, its apparent object, and [***7]
other statutes in pari materia, in order to determine whether
the language used by the Legislature is indeed plain and unambiguous.
See id.
III. INTERPRETATION
OF SECTION 30-18-1
SECTION
30-18-1 PROVIDES:
Cruelty to
animals consists of:
A. torturing,
tormenting, depriving of necessary sustenance, cruelly beating,
mutilating, cruelly killing or overdriving any animal;
B. unnecessarily
failing to provide any animal with proper food or drink; or
C. cruelly
driving or working any animal when such animal is unfit for labor.
The Court of
Appeals concluded that the phrase "any animal" plainly means all
animals, including game animals. See Cleve, 124 N.M. at 290, 1997
NMCA 113, P12. The Court of Appeals relied on the lack of definition
for "animal" in Section 30-18-1, unlike the cruelty statutes of
some other states, id. 124 N.M. at 291 PP10-11, and the lack of
alternative protection for many animals if they were excluded
from Section 30-18-1. Id. P 12. Additionally, the Court of Appeals
reviewed other criminal statutes relating to animals containing
specific references to domesticated animals and concluded that
the lack of specificity in [***8] Section 30-18-1 was a deliberate
choice of the Legislature. 124 N.M. at 291, 1997 NMCA 113, P13.
We disagree with the Court of Appeals' construction of Section
30-18-1.
In State v.
Buford, 65 N.M. 51, 331 P.2d 1110 (1958), this Court reviewed
a statute nearly identical to Section 30-18-1 in
defining cruelty
to animals. See id. at 52, 331 P.2d at 1110 (quoting in substantial
part 1887 NM Laws, ch. 1, ß 1 (repealed 1963)). The prosecution
in Buford charged the defendant with cruelty to animals in relation
to a cockfighting incident. Id. at 51, 331 P.2d at 1110. In determining
whether New Mexico's cruelty-to-animals statute prohibited cockfighting,
we discussed the cruelty-to-animals statutes of a number of other
states. 65 N.M. at 52-55, 331 P.2d at 1111-13. In addition, we
reviewed England's Cruelty to Animals Act, which also prohibited
the overdriving, abusing, or torturing of any animal and which
defined any animal as meaning horses, dogs, cats, and other domestic
animals. 65 N.M. at 55-57, 331 P.2d at 1113-14. We assumed in
Buford that gamecocks fell within the phrase "any animal" in New
Mexico's cruelty-to-animals statute. Id. at 52, 331 P.2d at 1111.
In addition, [***9] we acknowledged that the terms torture and
torment "would seem to embrace fighting cocks equipped with artificial
spurs or gaffs capable of cutting deep wounds and sharp gashes
in the cocks." 65 N.M. at 57-58, 331 P.2d at 1114. However, we
"looked at the statute as a whole," and we noted that "the [**27]
[*244] language of the statute ... seems to apply only to brute
creatures and work animals and the history shows that it was passed
in relation to other laws governing livestock." Id. at 58, 331
P.2d at 1114-15. As a result, because, unlike most states, no
New Mexico statute specifically prohibited cockfighting, we applied
the rule of lenity and determined that "the type of cruelty to
animal statute we are construing was not passed with the intention
of prohibiting such sports as cockfighting." Id. at 58, 331 P.2d
at 1115.
The Court of
Appeals concluded that our discussion of the cruelty-to-animals
statute applying only to brute creatures and work animals constituted
dicta. We disagree. Obiter dictum is defined as "words of an opinion
entirely unnecessary for the decision of the case." Black's Law
Dictionary 1072 (6th ed. 1990). The language quoted above from
Buford clearly [***10] demonstrates that our discussion of the
history and scope of the cruelty statute, far from being idle
observation, was essential to our analysis of the Legislature's
intent and directly influenced our holding that the statute did
not apply to cockfighting. While it is true that we assumed without
deciding that the cruelty statute protected gamecocks, we did
not assume that the phrase "any animal" had the broad meaning
attributed to it by the Court of Appeals in this case. Instead,
as noted in Buford, some courts had apparently held gamecocks
to be domestic animals within the provisions of cruelty-to-animals
statutes expressly limited to the protection of domesticated animals.
See Buford, 65 N.M. at 52, 56-57, 331 P.2d at 1111, 1114. Thus,
we understand Buford as assuming that, even though the history
of New Mexico's cruelty statute suggested that it applied only
to work animals, the Legislature also intended to protect domesticated
animals such as gamecocks from cruelty, though not from such sports
as cockfighting. To the extent Buford stands for the proposition
that the Legislature, in enacting the cruelty to animals statute,
primarily intended to protect work animals [***11] and that the
Legislature did not intend to prohibit such sports as cockfighting,
it is binding precedent in New Mexico, and the State fails to
argue that it should be overruled.
In any event,
we are persuaded that Buford accurately captures the history and
scope of cruelty to animals statutes in New Mexico, including
the present version contained in Section 30-18-1. First, although
under the plain language rule the phrase "any animal" would seem
to imply a broad meaning, the language of the statute as a whole
negates such an implication. Section 30-18-1 contains three subsections.
Section 30-18-1(B) and Section 30-18-1(C) prohibit behavior that
could only apply to domesticated animals or wild animals previously
reduced to captivity: unnecessarily failing to provide proper
food or drink and cruelly working an animal that is unfit for
labor. Despite such a necessarily limited scope, both of these
subsections include the phrase "any animal." Clearly, the Legislature
did not intend to create a duty on the part of the public to provide
sustenance to wild animals. Similarly, while Section 30-18-1(A)
prohibits some conduct that could apply to both domesticated and
wild animals, [***12] such as torturing, tormenting, cruelly beating,
mutilating, or cruelly killing any animal, it also proscribes
conduct, such as depriving of necessary sustenance and overdriving,
that necessarily excludes wild animals. We do not believe the
Legislature intended a different meaning for the phrase "any animal"
between different subsections of the same statute and within a
single subsection. To the contrary, we believe the Legislature
intended that the phrase "any animal" denote domesticated animals
and wild animals in captivity throughout Section 30-18-1. In fact,
the statute at issue in Buford, which did not contain discrete
subsections like Section 30-18-1, provided:
If any person
torture, torment, deprive of necessary sustenance, cruelly beat,
mutilate, cruelly kill or overdrive any animal, or unnecessarily
fail to provide the same with proper food or drink, or cruelly
drive or work the same when unfit for labor, he shall be punished
by a fine ....
1887 NM
LAWS, CH. 1, ß 1 (EMPHASIS ADDED).
We believe
the use of "the same" to describe "any animal," like the repeated
use of "any animal" in Section 30-18-1, supports a conclusion
that the Legislature [***13] intended the [**28] [*245] same meaning
for the phrase throughout the statute. As with Section 30-18-1(B)-(C),
it is clear that the Legislature did not intend the latter prohibitions
in the prior statute to apply to wild animals. Therefore, from
the contextual language of Section 30-18-1, we conclude that the
Legislature intended the phrase "any animal" to mean domesticated
animals and wild animals previously reduced to captivity.
In addition
to the language of the statute, we believe the history of Section
30-18-1 and other statutes in pari materia also support the conclusion
that the Legislature did not intend to include wild animals in
Section 30-18-1. As previously mentioned,
Section 30-18-1,
enacted by 1963 NM Laws, ch. 303, ß 18-1, replaced a cruelty
statute enacted by the Legislature in 1887. The Legislature placed
the statute under a general article entitled "Animals." This article
contains seven separate sections relating to criminal offenses
involving animals. See 1963 NM Laws, ch. 303, ß ß
18-1 to -7 (codified at NMSA 1978, ß ß 30-18-1 to
-2, -3 to -7 (1963)). In addition to the cruelty-to-animals prohibition
in Section 18-1, the other statutes in the article are as follows:
[***14] Section 18-2 prohibits the injury of "any animal or domesticated
fowl which is the property of another;" Section 18-3 prohibits
the unlawful branding of "any animal which is the property of
another;" Section 18-4 prohibits the "unlawful disposition of
animal," including "abandoning any livestock," taking livestock
for use without the owner's consent, and "driving or leading any
animal being the property of another from its usual range, without
the consent of the owner;" Section 18-5 prohibits the illegal
confinement of animals and refers to "any cow," "any bull," "offspring
of livestock," and "any freshly branded animal;" Section 18-6
prohibits the transporting of stolen livestock; and Section 18-7
prohibits the misrepresentation of pedigree "of any animal." We
believe that these statutes, enacted in conjunction with Section
30-18-1, under the same article, and regarding a similar subject
matter, are in pari materia with Section 30-18-1. See Roth, 113
N.M. at 334, 825 P.2d at 1244 ("A fundamental rule of statutory
construction is that all provisions of a statute, together with
other statutes in pari materia, must be read together to ascertain
the legislative intent."). Each of [***15] these other statutes
exclusively concern livestock and other animals possessed by humans,
yet these statutes variously use the phrase "any animal" to describe
the domesticated animals covered by the statute. Similar to the
history of the statute at issue in Buford, see Buford, 65 N.M.
at 58, 331 P.2d at 1115 (stating that "the history [of the cruelty
to animals statute] shows that it was passed in relation to other
laws governing livestock"), we believe these statutes clarify
that the phrase "any animal" in Section 30-18-1 extends only to
domestic animals and wild animals previously reduced to captivity.
See State v. Ogden, 118 N.M. 234, 243, 880 P.2d 845, 854 (1994)
("Statutes on the same general subject should be construed by
reference to each other, the theory being that the court can discern
legislative intent behind an unclear statute by reference to similar
statutes where legislative intent is more clear." (citation omitted)).
Thus, we conclude that the Legislature enacted the entire article,
1963 NM Laws, ch. 303, ß ß 18-1 to -7, with the exclusive
purposes of controlling certain human behavior in relation to
domesticated animals and protecting the property rights [***16]
of the owners of domesticated or previously captured wild animals.
Finally, we
presume that the Legislature was aware of Buford and our interpretation
of the former cruelty-to-animals statute, 1887 NM Laws, ch. 1,
ß 1, when it repealed that statute and enacted Section 30-18-1
in 1963. See V.P. Clarence Co. v. Colgate, 115 N.M. 471, 474,
853 P.2d 722, 725 (1993) (stating that "the Legislature is presumed
to act with knowledge of relevant case law"). The Legislature
could have easily inserted a definition of "animal" in Section
30-18-1 if it had disapproved of our interpretation of the scope
of the statute in Buford. Cf. Slygh v. RMCI, Inc., 120 N.M. 358,
360, 901 P.2d 776, 778 (Ct. App. 1995) (presuming the Legislature
to have been aware of existing judicial pronouncements and stating
that the Legislature "could have expressly" taken a different
approach). Instead, the Legislature reenacted the statute with
largely stylistic changes in the definition of the crime.
[**29] [*246]
From the context surrounding the enactment of Section 30-18-1,
we conclude that the Legislature intended the phrase "any animal"
to include domesticated animals and wild animals [***17] in captivity
and did not intend to include other wild animals. We disagree
with the Court of Appeals' assessment that such an intent would
be absurd or unjust. While many may regard it presently desirable
for New Mexico to protect all animals, including wild animals,
from human cruelty, "[a] statute is to be interpreted as the Legislature
understood it at the time it was passed." Pan Am. Petroleum Corp.
v. El Paso Natural Gas Co., 82 N.M. 193, 196, 477 P.2d 827, 830
(1970). Our role in statutory interpretation is not to sculpt
the most just law possible out of the words used by the Legislature
or to attribute the meaning to a statute that contemporary ideals
would deem preferable. Cf. Salazar v. St. Vincent Hosp., 95 N.M.
150, 153, 619 P.2d 826, 829 (Ct. App. 1980) ("To construe legislation
on the basis of contemporary meanings of words used by the enacting
legislature would make a mockery of legislative intent ....").
Our role is to determine the intent of the Legislature. It has
not been uncommon, both at the time the Legislature enacted Section
30-18-1 and at present, for state legislatures to limit cruelty
to animals statutes to domesticated animals and wild animals [***18]
in captivity. See, e.g., Iowa Code ß 717B.1(1)(b) (1995)
(excluding from the crimes of animal abuse and neglect, among
other things, "any game, fur-bearing animal, fish, reptile, or
amphibian" unless owned, confined, or controlled by a person);
N.H. Rev. Stat. Ann. ß 644:8 (1996 & Supp. 1998) (proscribing
cruelty to "any animal" and defining "animal" to mean "a domestic
animal, a household pet or a wild animal in captivity"); Okla.
Stat. tit. 21, ß 1685 (Supp. 1999) (proscribing cruelty
to "any animal in subjugation or captivity, whether wild or tame,
and whether belonging to [the accused] or to another"); Tex. Penal
Code Ann. ß 42.09(c)(1) (West Supp. 1999) (defining "animal"
in a cruelty to animals statute as "a domesticated living creature
and wild living creature previously captured"). A policy decision
of this nature should not be second-guessed by the judiciary.
The decision to extend the scope of an existing statute to reflect
changing values is a matter for the Legislature, and absent an
amendment to Section 30-18-1, we presume that the Legislature
continues to intend that the statute apply according to its original
meaning. In light of the history of cruelty to animals [***19]
statutes in New Mexico, we believe that the Legislature intended
to exclude wild animals from the protections of Section 30-18-1.
Because we do not believe that such a result can be characterized
as either absurd or unjust under the circumstances surrounding
the statute's enactment, we are not persuaded that the Legislature
must have had a different intent. See Aztec Well Servicing Co.
v. Property & Cas. Ins., Guar. Ass'n, 115 N.M. 475, 479, 853
P.2d 726, 730 (1993) ("Our interpretation of the statute must
be consistent with legislative intent, and our construction must
not render the statute's application absurd, unreasonable, or
unjust."). Thus, we conclude that wild game animals, including
the deer snared by Cleve in this case, are not covered by Section
30-18-1.
IV. NEW
MEXICO'S GAME AND FISH LAWS
Even if we
had concluded that wild animals are protected by Section 30-18-1,
we believe there are additional indications that the Legislature
did not intend that Cleve's conduct in this case fall within
the meaning of cruelty to animals in Section 30-18-1. Cleve
argues that New Mexico game and fish statutes and regulations
preempt the application of Section [***20] 30-18-1 to game animals.
The Court of Appeals rejected his argument on the basis of a
rule of statutory construction, the general/specific statute
rule, that has proven somewhat difficult to apply. We take this
opportunity to clarify our cases and the proper application
of the general/specific statute rule in New Mexico. We agree
with Cleve that the overall statutory scheme governing hunting
and fishing demonstrates a legislative intent to preempt the
application of Section 30-18-1 to game and fish with respect
to conduct contemplated by game and fish laws. We believe that
the general/specific statute rule therefore provides additional
support for our interpretation of Section 30-18-1.
[**30] [*247]
As a rule of statutory construction in determining legislative
intent, where one statute deals with a subject in general terms,
and another deals with a part of the same subject in a more
detailed way, the two should be harmonized if possible; but
if there is any conflict, the latter will prevail, regardless
of whether it was passed prior to the general statute, unless
it appears that the legislature intended to make the general
act controlling.
2B Norman
J. Singer, Sutherland Statutory [***21] Construction ß
51.05 (5th ed. 1992) (footnotes omitted); accord State v. Blevins,
40 N.M. 367, 368-69, 60 P.2d 208, 209 (1936). This rule in effect
treats the special law as an exception to the general law because
the Legislature is presumed not to have intended a conflict
between two of its statutes and because the Legislature's attention
is more particularly directed to the relevant subject matter
in deliberating upon the special law. See Wilburn v. Territory,
10 N.M. 402, 408, 62 P. 968, 971 (1900), overruled sub silencio
on other grounds, Territory v. Tais, 14 N.M. 399, 402-03, 94
P. 947, 948-49 (1908). In the context of criminal laws, this
rule of construction has a corollary: if two statutes, one general
and one special, punish the same criminal conduct, the special
law operates as an exception to the general law "to the extent
of compelling the state to prosecute under" the special law.
Blevins, 40 N.M. at 369, 60 P.2d at 210.
Cleve contends
that the unlawful hunting statute, Section 17-2-7, is a special
law that conflicts with the general prohibition against cruelty
to animals in Section 30-18-1. In discussing this argument,
the Court of [***22] Appeals concluded that Section 17-2-7 and
Section 30-18-1 serve different purposes, are both necessary
to fully protect game animals, and, therefore, do not conflict
with one another. Cleve, 1997-NMCA-113, PP 7-8. The Court of
Appeals therefore held that the general/specific statute rule
did not apply. Id. While we believe that the prohibition against
unlawful hunting, by itself, does not conflict with Section
30-18-1, we disagree with the Court of Appeals' assessment of
the general/specific statute rule. Even if we had concluded
that Section 30-18-1 prohibits cruelty against wild animals,
we believe that the overall scheme of laws in New Mexico governing
hunting and fishing would irreconcilably conflict with Section
30-18-1. Thus, we conclude that the Legislature did not intend
for Section 30-18-1 to apply to hunting activities contemplated
by New Mexico's specific laws governing game and fish.
Although courts and commentators
are readily able to recite the general/specific statute rule,
its practical application has caused considerable difficulty.
This Court has discussed the rule on several occasions. In Wilburn,
a defendant, who had stolen a cow, argued [***23] that he should
have been sentenced pursuant to a general larceny provision,
which provided for a value-structured punishment based on the
dollar amount of the item stolen, rather than under a statute
governing the theft of livestock, which contained a single penalty
regardless of the value of the livestock. Wilburn, 10 N.M. at
407-08, 62 P. at 970. We concluded that the object of the earlier-enacted
statute governing the theft of livestock "was not to prevent
larceny in general, but to protect the ownership of a certain
class of property," and the statute therefore operated as an
exception to the statute defining the general crime of larceny.
Id. at 409, 62 P. at 971. Subsequently, we relied on the general/specific
statute rule in Blevins to conclude that the prosecution had
improperly charged the defendant under a general statute proscribing
the sale of another's property rather than a specific statute
governing the sale of cattle. Blevins, 40 N.M. at 369-70, 60
P.2d at 210. For determining whether the general/specific statute
rule applied, we adopted "the test applied in the United States
Supreme Court [in Blockburger v. United States, 284 U.S. 299,
303-04, 76 [***24] L. Ed. 306, 52 S. Ct. 180 (1932)] for determining
whether the offenses inveighed against are the same or distinct
offenses." Blevins, 40 N.M. at 369, 60 P.2d at 210. Under this
test, the relevant inquiry is whether each provision requires
proof of an additional fact that the other does not. Id. Applying
this test in Blevins, we noted that "the possible prejudice
to the [defendant] is in the increased penalty" under the general
statute proscribing the sale of another's [**31] [*248] property,
id. at 368, 60 P.2d at 209, and concluded that "the general
statute is not
operative as to the special kinds of property described in the
special statute," id. at 369, 60 P.2d at 210.
Our more
recent cases have relied on Blevins in applying the general/specific
statute rule as it affects the charging discretion of the prosecutor.
For example, in Aragon v. Cox, 75 N.M. 537, 541, 407 P.2d 673,
676 (1965) (per curiam), overruled on other grounds, State v.
Chavez, 77 N.M. 79, 82, 419 P.2d 456, 458 (1966), we addressed
the relationship between a statute specifically proscribing
the possession of marijuana and a statute proscribing the possession
of a narcotic drug, [***25] the latter of which specifically
defined marijuana as a narcotic drug. We concluded that the
statutes were equally specific and that, therefore, the general/specific
rule did not apply. Id. n1
n1 Although
we also concluded in Aragon that "the State has a choice in
the matter of initiating prosecutions for possession of marijuana"
because both statutes "are specific in condemning certain conduct
relating to ... marijuana," Aragon, 75 N.M. at 541, 407 P.2d
at 676, we quickly modified this conclusion in State v. Chavez,
77 N.M. 79, 419 P.2d 456 (1966). In Chavez, we concluded that,
because the two statutes at issue in Aragon "condemn the same
act" in a specific way, the "view which would permit the law
enforcement authorities to subject one person to the possibility
of a greater punishment than another who has committed an identical
act ... would do violence to the equal protection clauses of
our state and federal constitutions." Id. at 82, 419 P.2d at
458; see also People v. Estrada, 198 Colo. 188, 601 P.2d 619,
621 (Colo. 1979) (concluding that prosecutorial discretion between
two statutes proscribing identical conduct with different penalties
violates state constitutional principles of equal protection).
But see United States v. Batchelder, 442 U.S. 114, 118-25, 60
L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (concluding that, given
Congress's intent that two nearly-identical statutes apply independently,
prosecutorial discretion in selective enforcement does not violate
the federal Constitution unless it is based on constitutionally
impermissible grounds such as race or gender). Thus, we implicitly
reaffirmed our conclusion in Aragon that the general/specific
statute rule does not apply to two equally specific statutes.
However, in such a case, if the penalty provisions are different,
then the statutes are irreconcilable, and we determined in Chavez
that the later enactment governing narcotics, including marijuana,
implicitly repealed the prior enactment exclusively governing
marijuana. See Chavez, 77 N.M. at 82, 419 P.2d at 458.
[***26]
On a number
of occasions, this Court has encountered some disagreement in
the application of the general/specific statute rule. In Chavez,
for example, while the majority followed Aragon in determining
that the two statutes proscribed marijuana possession with equal
specificity, two justices dissented because they believed that,
under Blevins, the more specific statute relating exclusively
to marijuana controlled over the statute relating to narcotic
drugs in general. Chavez, 77 N.M. at 83-85, 419 P.2d at 459-60
(Moise, J., dissenting); see also State v. Reams, 98 N.M. 215,
216, 647 P.2d 417, 418 (1982) (reaching a split decision regarding
the application of the general/specific statute rule). More
recently, the Court of Appeals again recognized some ambiguities
in the application of the general/specific statute rule. See
State v. Wasson, 1998 NMCA 87, P19, 125 N.M. 656, 964 P.2d 820
(stating that "it is problematic to discern which of the two
statutes is the more specific"), cert. denied, No. 25,159 (1998);
State v. Arellano, 1997 NMCA 74, P12, 123 N.M. 589, 943 P.2d
1042 (same), cert. quashed, No. 24,410 [***27] (1998). These
cases demonstrate that New Mexico courts frequently resort to
the general/specific statute rule as an aid in statutory construction
but that the rule is also frequently difficult for courts to
apply. As a result, we believe it is necessary to clarify the
application of this rule in New Mexico.
Although
not explicit in our earlier cases, it is clear that the general/specific
statute rule, to the extent that it requires prosecution under
one statute instead of another, is connected with the principle
of double jeopardy as it relates to multiple punishment for
unitary conduct. For example, in Blevins, "we started with the
premise that both acts condemn the same offense. A conviction
under one statute could be pleaded as a former jeopardy against
a subsequent prosecution under the other statute." 40 N.M. at
368, 60 P.2d at 209. Thus, our determination that the Legislature
did not intend multiple punishment under the two statutes was
a prerequisite to our inquiry under the general/specific statute
rule. Indeed, [**32] [*249] we adopted the test from Blockburger,
a test developed in the context of multiple punishments, for
deciding whether the general/specific statute [***28] rule applied.
We later applied this test in State v. Ibn Omar-Muhammad, 102
N.M. 274, 277, 694 P.2d 922, 925 (1985), in which we discussed
the relationship between the crimes of vehicular homicide by
reckless driving and depraved mind murder. We determined that
depraved mind murder requires proof of an additional fact, a
higher level of mental culpability in the element of subjective
knowledge that the defendant's act is greatly dangerous to the
lives of others, when compared to vehicular homicide and that,
therefore, the general/specific rule did not apply. Id. at 278,
694 P.2d at 926. In light of the relationship between principles
of double jeopardy and the general/specific statute rule, we
now clarify our reasoning in Ibn Omar-Muhammad.
This Court
more recently discussed the principle of double jeopardy in
relation to multiple punishments in Swafford v. State, 112 N.M.
3, 7-16, 810 P.2d 1223, 1227-36 (1991). We noted that the double
jeopardy clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, provides "limited expectations"
to criminal defendants facing multiple convictions and punishments
in a single trial arising [***29] out of the same criminal conduct.
Id. at 7, 810 P.2d at 1227. In
the context of simultaneously imposed multiple punishments,
"the Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature
intended." Missouri v. Hunter, 459 U.S. 359, 366, 74 L. Ed.
2d 535, 103 S. Ct. 673 (1983). As a result, we acknowledged
that "the necessary corollary to the focus on legislative intent
is that the Blockburger test is not a constitutional rule, but
merely a canon of construction used to guide courts in deciphering
legislative intent." Swafford, 112 N.M. at 9, 810 P.2d at 1229.
In Swafford,
we adopted a two-part test for determining legislative intent
to punish. The first part of our inquiry asks ... whether the
conduct underlying the offenses is unitary, i.e., whether the
same conduct violates both statutes. The second part focuses
on the statutes at issue to determine whether the Legislature
intended to create separately punishable offenses. Only if the
first part of the test is answered in the affirmative, and the
second in the negative, will the double jeopardy clause prohibit
multiple punishment [***30] in the same trial.
SWAFFORD,
112 N.M. AT 13, 810 P.2D AT 1233.
After describing
the relevant considerations for determining whether underlying
conduct is unitary, we explained the proper focus in ascertaining
legislative intent. First, under the Blockburger test, a court
should compare the elements of the two offenses, and if the
elements of one crime are subsumed within the elements of the
other, "the inquiry is over and the statutes are the same for
double jeopardy purposes-punishment cannot be had for both."
Swafford, 112 N.M. at 14, 810 P.2d at 1234. On the other hand,
if the elements of the crimes do not correspond, then the Blockburger
test raises only a presumption that the statutes punish distinct
offenses. That presumption, however is not conclusive and it
may be overcome by other indicia of legislative intent. Here,
we must turn to traditional means of determining legislative
intent: the language, history, and subject of the statutes.
Id. Although
double jeopardy prevents certain multiple punishments in accordance
with legislative intent, it typically does not infringe upon
the discretion of the prosecution to charge multiple offenses.
[***31] Like
the double jeopardy inquiry in the multiple punishment context,
the general/specific rule is a canon of statutory construction
with constitutional overtones. See Mills v. State, 722 S.W.2d
411, 413 (Tex. Crim. App. 1986) (en banc) ("In the case in which
the special statute provides for a lesser range of punishment
than the general, obviously an irreconcilable conflict exists,
and due process and due course of law dictate that an accused
be prosecuted under the special provision, in keeping with presumed
legislative intent." (internal quotation marks omitted)). Both
analyses focus on legislative intent. However, whereas courts
use the principle of double jeopardy in this context to assess
the propriety of multiple punishments [**33] [*250] by courts
based on multiple crimes charged by a prosecutor, courts use
the general/specific rule to scrutinize the propriety of a single
charge of one crime as opposed to a different crime. Thus, while
the double jeopardy inquiry focuses on whether the Legislature
intended to limit a court's discretion in imposing multiple
punishments, the general/specific statute rule determines whether
the Legislature intended to limit the discretion of the [***32]
prosecutor in its selection of charges.
Accordingly,
we reaffirm our reliance on the Blockburger test, as the test
has been explained in Swafford, for determining whether the
general/specific statute rule should apply. Courts should compare
the elements of the two relevant crimes. If the elements of
the two crimes are the same, the general/specific statute rule
applies, and the prosecution must charge the defendant under
the special law absent a clear expression of legislative intent
to the contrary. See Blevins, 40 N.M. at 369-70, 60 P.2d at
210; Wilburn, 10 N.M. at 407-09, 62 P. at 970-71. If the elements
differ, courts must look to other indicia of legislative intent
and determine whether the Legislature intended to limit prosecutorial
discretion in the selection of charges for the specific criminal
conduct. In ascertaining legislative intent, courts should balance
the rule of lenity, which favors applying the general/specific
statute rule in cases of ambiguity, with the judiciary's longstanding
deference to prosecutorial discretion, which favors the exercise
of caution before applying the general/specific statute rule.
See State v. Anaya, 1997 NMSC 10, [***33] P32, 123 N.M. 14,
933 P.2d 223 ("Application of the rule of lenity requires that
criminal statutes be interpreted in the defendant's favor when
'insurmountable ambiguity persists regarding the intended scope
of [that] statute.'" (quoting Ogden, 118 N.M. at 242, 880 P.2d
at 853) (alteration in original)); Ball v. United States, 470
U.S. 856, 859, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985) ("This
Court has long acknowledged the Government's broad discretion
to conduct criminal prosecutions, including its power to select
the charges to be brought in a particular case."); cf. Mitchell
v. Superior Court, 49 Cal. 3d 1230, 783 P.2d 731, 743, 265 Cal.
Rptr. 144 (Cal. 1989) (stating that the general/specific statute
rule "does not purport to limit the People's discretion to prosecute
under a general statute that provides a sanction less severe
than that called for under a specific statute").
In Ibn Omar-Muhammad,
102 N.M. at 277-78, 694 P.2d at 925-26, we focused our inquiry
on the elements of the two relevant crimes and determined that
the Legislature did not intend to limit prosecutorial discretion
due to the clearly distinct behavior each [***34] statute sought
to prevent and the distinct level of culpability that the Legislature
sought to punish. Although
we focused our inquiry on the elements of the two relevant crimes,
we now clarify that we did not intend to suggest that the elements
of the crimes serve as the only relevant factor under the general/specific
statute rule. Rather, in conformity with Swafford, our application
of the general/specific statute rule in State v. Yarborough,
1996 NMSC 68, PP26-29, 122 N.M. 596, 930 P.2d 131, serves as
an example of additional relevant factors in ascertaining legislative
intent. In Yarborough, we reviewed the history of statutes proscribing
homicide by vehicle and involuntary manslaughter in New Mexico.
1996 NMSC 68, PP28-29, 122 N.M. at 606. In addition, we reviewed
decisions from other jurisdictions that concluded that "the
enactment of a comprehensive motor vehicle code shows a legislative
intent to preempt the field." 1996 NMSC 68, P27, 122 N.M. at
606. From the history of the statute, we found a similar legislative
intent in New Mexico and concluded that the Legislature "intended
to preempt involuntary manslaughter when the predicate offense
is a misdemeanor contained within the Motor Vehicle [***35]
Code." 1996 NMSC 68, P29, 122 N.M. at 606. Thus, an inquiry
under the general/specific statute rule should always focus
primarily on whether the Legislature intended that the specific
law operate as an exception to the general law and whether the
Legislature intended that certain criminal conduct be charged
under one special law to the exclusion of other more general
laws. This inquiry may include the elements of the crimes, the
language of the statutes, the histories and purposes of the
statutes, and other relevant indicia of legislative intent.
To the extent that Ibn Omar-Muhammad might [**34] [*251] suggest
that we strictly rely on the elements of the crimes in ascertaining
legislative intent, see State v. Tisthammer, 1998 NMCA 115,
P34, 126 N.M. 52, 966 P.2d 760 (relying on Ibn Omar-Muhammad
and stating that "if, under the Blockburger test, each statute
includes an element that the other does not, the general-specific
rule is inapplicable"), cert. denied, No. 25,256 (1998); Wasson,
1998-NMCA-087, PP 16-19 (similar), it is hereby modified in
accordance with the reasoning articulated in Swafford and the
analysis applied in Yarborough. Cf. People v. Jenkins, 28 Cal.
[***36] 3d 494, 620 P.2d 587, 592, 170 Cal. Rptr. 1 (Cal. 1980)
(stating that a strict elements test is "incomplete" for determining
whether the general/specific statute rule applies).
We note that
a determination that the Legislature intended to limit the prosecutor's
charging discretion may not fully resolve the matter. As expressed
in some recent cases, it may be difficult in some circumstances
to determine which of two laws can be characterized as specific
and which can be characterized as general. However, this difficulty
does not preclude application of the rule or signal that such
an inquiry would be futile. As with the interpretation of all
statutes, courts should resort to traditional means of ascertaining
legislative intent. For example, in Reams, Judge Wood of the
Court of Appeals, whose dissenting opinion was adopted by this
Court, see Reams, 98 N.M. at 216, 647 P.2d at 418, reviewed
the purpose and history of the Controlled Substances Act, as
well as the language of several of its provisions, to conclude
that the Legislature focused its attention on criminal drug
offenses more particularly in enacting the Controlled Substances
Act than in the Drug and Cosmetics [***37] Act and that the
Legislature intended that the Controlled Substances Act take
priority in criminal prosecutions concerning conduct contemplated
by the Controlled Substances Act. See State v. Reams, 98 N.M.
372, 377-78, 648 P.2d 1185, 1190-91 (Ct. App. 1981) (Wood, J.,
dissenting). Judge Wood's analysis demonstrates that, after
determining that the general/specific statute rule applies,
traditional rules of statutory construction adequately illuminate
which of two statutes the Legislature intends to apply in a
particular case.
Applying
these principles to the facts of this case, we note that Cleve's
focus on the general/specific statute rule in relation to his
prosecution for violations of both Section 17-2-7 and Section
30-18-1 is somewhat misplaced. Cleve was convicted of both unlawful
hunting and cruelty to animals. Thus, the facts of this case
require us to ask, first, whether principles of double jeopardy
preclude these multiple convictions. If the Legislature intended
to create separately punishable offenses in Section 17-2-7 and
Section 30-18-1, double jeopardy would not bar multiple punishments,
and we then would not need to engage in an inquiry regarding
the [***38] application of the general/specific rule to these
two statutes because a legislative intent to create multiple
punishments necessarily implies that the Legislature also intended
to leave intact the prosecutor's charging discretion. If, on
the other hand, we conclude that the Legislature did not intend
to create separately punishable offenses, then one of Cleve's
convictions would be constitutionally invalid, and we would
proceed to address the separate matter of whether, under the
general/specific statute rule, the Legislature intended that
one crime apply to the exclusion of the other.
Under Swafford,
we look first at the elements of the two crimes in order to
determine legislative intent. n2 From a review of these two
crimes, it is clear that the elements of unlawful hunting are
not subsumed within the crime of cruelty to animals. Unlawful
hunting requires proof that a defendant hunted, took, captured,
or killed any game animal, game fish, or game bird, or attempted
the same, in a manner not permitted by game and fish regulations
or some other law. [**35] [*252] Section 17-2-7. Specifically,
the State relied on the fact that snaring is not an authorized
manner for taking deer [***39] pursuant to State Game Commission
(Commission) regulations. By contrast, cruelty to animals requires
proof that a defendant tortured or cruelly killed an animal.
Cf. State v. Carrasco, 1997 NMSC 47, P27, 124 N.M. 64, 946 P.2d
1075 ("Both offenses are defined by statutes providing several
alternatives, thus we focus on the legal theory of the case
and disregard any inapplicable statutory elements."). As a result,
if we had concluded that Section 30-18-1 applies to wild animals,
the unique elements of torture or cruelty in Section 30-18-1
and of violation of the Commission's regulations in Section
17-2-7 would raise a pre
sumption
that the Legislature intended to create separately punishable
offenses. Thus, we turn to traditional means of discerning legislative
intent in order to determine whether the presumption stands.
n2 At oral
argument, the State suggested that double jeopardy would not
apply in this case because the underlying conduct for the crimes
was not unitary. The State asserted that Cleve committed unlawful
hunting by simply setting the snares but did not commit cruelty
to animals until the animals were actually caught. Because the
State relied on the actual snaring of the deer for both crimes
in the trial court, and in fact chose not to prosecute Cleve
for setting a snare that did not trap any animals, we assume
the underlying conduct was unitary for purposes of this inquiry.
[***40]
In this context,
we ask whether the violation of one statute will normally result
in a violation of the other. See Swafford, 112 N.M. at 14, 810
P.2d at 1234; see also Jenkins, 620 P.2d at 592 (stating that
the general/specific statute rule applies "if it appears from
the entire context that a violation of the 'special' statute
will necessarily or commonly result in a violation of the 'general'
statute"). As the Court of Appeals noted, if Section 30-18-1
were to protect wild animals, it would be possible to violate
each statute, cruelty to animals and unlawful hunting, independently,
without violating the other. Cleve, 1997-NMCA-113, P 8. For
example, many hunters could be convicted of unlawful hunting
for killing game without a license, or out of season, and yet
fail to satisfy the elements of cruelty to animals. Thus, even
if Section 30-18-1 had protected wild animals, the violation
of one of these statutes would not commonly result in violation
of the other. Further, in assessing "the particular evil sought
to be addressed by each offense," and bearing in mind that the
description of "social evils can be elusive and subject to diverse
interpretation," [***41] Swafford, 112 N.M. at 14, 810 P.2d
at 1234, we agree with the Court of Appeals that these statutes
serve different purposes. Cleve, 1997-NMCA-113, PP 7-8. As we
have already stated, the cruelty to animals statute serves to
define the outer boundaries of acceptable human conduct toward
animals. By contrast, the unlawful hunting statute serves to
enforce the authority of the Commission in defining the manner
and conditions of lawful hunting and fishing in New Mexico and
to ensure that hunting and fishing in New Mexico is carried
out in a manner consistent with the public policy articulated
in NMSA 1978, ß 17-1-1 (1931).
It is the
purpose of this act and the policy of the state of New Mexico
to provide an adequate and flexible system for the protection
of the game and fish of New Mexico and for their use and development
for public recreation and food supply, and to provide for their
propagation, planting, protection, regulation and conservation
to the extent necessary to provide and maintain an adequate
supply of game and fish within the state of New Mexico.
Id. Taking
into account such statutory factors as language, history, and
purpose, we conclude that the Legislature [***42] intended to
create separately punishable offenses by enacting Section 17-2-7
and Section 30-18-1. Thus, we conclude that, if Section 30-18-1
had protected wild animals from cruelty, double jeopardy would
not prevent convictions for both of these crimes, and we therefore
need not address the application of the general/specific statute
rule in the limited context of prosecutorial discretion in charging
one of these crimes instead of the other.
Notwithstanding
a lack of conflict between the statutory prohibition against
unlawful hunting, by itself, and Section 30-18-1, Cleve also
asserts that the overall statutory scheme governing hunting
and fishing demonstrates a legislative intent to preempt the
application of Section 30-18-1 to game and fish with respect
to conduct contemplated by game and fish laws. We agree. As
outlined above, the general/specific statute rule is broader
in application than determining only the potential limits on
prosecutorial discretion in charging one crime instead of another.
This rule of construction assists courts more generally in determining
whether the Legislature intended to create an exception to a
general statute by enacting [**36] [*253] another law [***43]
dealing with the matter in a more specific way. Although the
limited proscription against unlawful hunting, standing alone,
does not conflict with Section 30-18-1, we conclude that New
Mexico's other laws specifically governing hunting and fishing
irreconcilably conflict with Section 30-18-1 and that behavior
contemplated by the Legislature's authorization of hunting and
fishing is excepted from the general proscription against cruelty
to animals.
The Legislature
has established in New Mexico a system under which game and
fish may be "used and developed for public recreation and food
supply." Section 17-1-1. In order to implement this system,
the Legislature created the Commission, NMSA 1978, ß 17-1-2
(1991), and delegated to it, among other things, the power to
"authorize or prohibit the killing or taking of any game animals,
game birds or game fish of any kind or sex" and the power to
regulate "the manner, methods and devices which may be used
in hunting, taking or killing game animals, game birds and game
fish," NMSA 1978, ß 17-2-1 (1983). The Commission's regulations
include provisions governing the hunting of deer, as well as
provisions establishing the proper [***44] use of traps and
snares.
Cleve's cruelty
to animals convictions are based on the snaring of two deer.
In placing his snares, it is clear that Cleve was
engaged in
the activity of hunting the deer on his land and that his manner
of hunting, trapping by snare, is within the range of hunting
activity contemplated by the game and fish statutes. We believe
that Cleve's conviction of cruelty to animals for snaring game
animals exemplifies the conflict between Section 30-18-1 and
the Legislature's provisions governing hunting and fishing in
New Mexico. Although the Commission's regulations do not authorize
the capturing of deer by snare, see Legal Sporting Arms and
Ammunition, Department of Game and Fish, 19 NMAC 31.1.16.4 (April
1, 1995), the Commission has promulgated regulations authorizing
the snaring and trapping of furbearing game animals within certain
parameters, see Manner and Method of Taking Furbearers, Department
of Game and Fish, 19 NMAC 32.1.10 (April 1, 1995). The language
of Section 17-2-1 clearly delegates to the Commission the power
to determine whether the snaring of particular game animals
is consistent with the statutory purposes articulated in Section
[***45] 17-1-1. It appears from the evidence introduced in the
trial court that the manner of death for the two snared deer,
strangulation and either starvation, dehydration, or fatigue,
is not atypical for a snared game animal. Thus, under the Court
of Appeals' interpretation of Section 30-18-1, the lawful snaring
of furbearing animals would appear to be equally subject to
prosecution for cruelty to animals. Further, a Department official,
Assistant Chief of Operations Pat Barncastle, testified that,
when the Department traps antelope and deer for purposes such
as relocation, it is not uncommon for them to die of stress-related
fatigue. This activity would also appear to violate the cruelty
to animals statute under the Court of Appeals' construction.
Additionally, the State charged Cleve with cruelty to animals
for shooting several deer in the abdomen, even though Officer
Barncastle testified that approximately twenty-five to thirty-five
percent of deer lawfully taken pursuant to Commission regulations
are also shot in the abdomen. Thus, according to the State's
interpretation of Section 30-18-1, the lawful hunting of deer
would appear to subject a hunter to potential prosecution for
cruelty [***46] to animals. We believe that these applications
of Section 30-18-1 would conflict with the Legislature's authorization
of hunting and fishing in New Mexico and would frustrate the
Legislature's delegation of power to the Commission to determine
the manner in which hunting is to be conducted.
Although
Cleve's conduct violated Commission regulations, thereby constituting
unlawful hunting, it was not beyond the scope of activity that
the Legislature has chosen to place within the regulatory power
of the Commission. In fact, the Legislature has recently addressed
the specific problems arising in this case, providing that landowners
may, in accordance with Commission regulations, take a game
animal on private land if the animal "presents an immediate
threat to human life or an immediate threat of damage to property,
including crops." NMSA 1978, ß 17-2-7.2 (1997). Thus,
we [**37] [*254] determine that the Legislature's endorsement
of hunting and fishing activity and its delegation of power
to the Commission to determine the manner of hunting substantially
and irreconcilably conflicts with the cruelty-to-animals statute.
Therefore, we conclude that, even if the Legislature had intended
to [***47] protect wild animals in Section 30-18-1, the Legislature,
having dealt with the subject of the hunting of game animals
more particularly in the game and fish laws, intended to create
an exception from the cruelty-to-animals statute for hunting
and fishing activity contemplated by game and fish laws.
Like the
comprehensive Motor Vehicle Code addressed in Yarborough, 1996-NMSC-068,
PP 27-29, we believe the comprehensive nature of the game and
fish laws with respect to hunting activity demonstrates a legislative
intent to preempt application of Section 30-18-1 to the hunting
of game animals. Because Cleve was engaged in the hunting of
game animals, specifically deer, and because his manner of hunting
was within the range of activity contemplated by game and fish
statutes and regulations, we apply the general/specific statute
rule and conclude that Section 30-18-1 is inapplicable to the
facts of this case.
V. Conclusion
Section 30-18-1 prohibits various forms of cruelty to "any animal."
We believe that the Legislature intended the phrase "any animal"
to mean domestic animals and wild animals in captivity. As a
result, we conclude that Section 30-18-1 [***48] does not apply
to Cleve's conduct of snaring two deer. Further, even if the
Legislature had intended to protect wild animals in Section
30-18-1, we conclude that New Mexico's laws governing hunting
and fishing preempt the application of Section 30-18-1 to the
taking of deer by Cleve in this case. Therefore, we reverse
Cleve's convictions for cruelty to animals.
IT IS SO
ORDERED.
PATRICIO
M. SERNA, Justice
WE CONCUR:
PAMELA B.
MINZNER, Chief Justice
JOSEPH F.
BACA, Justice
GENE E. FRANCHINI,
Justice
|