State v. Sanchez

Decision Date30 June 1967
Docket NumberNo. 43,43
Citation430 P.2d 781,1967 NMCA 9,78 N.M. 284
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Tommy SANCHEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

WOOD, Judge.

A jury convicted defendant of unarmed robbery. His appeal raises three issues; one is dispositive. That issue is whether defendant's motion for a directed verdict should have been sustained.

Juan Marrujo was using a restroom in a bar. Defendant entered the restroom, took a wallet containing money from Mr. Marrujo's pocket and backed out of the restroom. Defendant started running when the victim yelled.

No weapon was used. No blows were struck. No artifice was employed to obtain the wallet. Mr. Marrujo knew the defendant; however, no words were spoken.

Mr. Marrujo testified that defendant '* * * put his hand in back of me and took my purse, put his hand in my pocket.'

The victim testified that in taking the wallet, defendant put his fist against Mr. Marrujo's back; he also testified that he didn't know whether a fist was made because defendant was behind him.

As defined in § 40A--16--2, N.M.S.A.1953:

'Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.'

Thus, robbery may be committed (1) by use of force or violence or (2) by threatened use of force or violence. As explained in 2 Wharton's Criminal Law and Procedure, § 554:

'It is essential that the defendant accomplish the taking of the property by means of force or violence or by intimidating or putting the victim in fear. The requirement is stated in the disjunctive so that the offense is committed if either force or fear is present though not both. * * *'

The force or intimidation is the gist of the offense. Mitchell v. State, 408 P.2d 566 (Okl.Crim.1965).

Defendant contends that the evidence fails to establish that either force or fear was used, that his crime, if any, was larceny rather than robbery.

The only evidence bearing on the question of force or fear is the testimony that defendant put his fist against the victim's back. We do not know the manner in which this was done; we do not know the victim's reaction to this act. Does the fist against the back, without more, constitute the force or fear sufficient to sustain a robbery conviction?

Where force is charged, the issue is not how much force was used, but whether the force was sufficient to compel the victim to part with his property. 2 Wharton, supra, § 555.

Where fear or intimidation is charged,

'* * * It is necessary to show that the circumstances were such as to cause a reasonable man to apprehend danger and that he could be reasonably expected to give up his property in order to protect himself. * * * That is, it is essential to show that the defendant did acts or said things which reasonably induced fear, and that the victim gave up his property because of the apprehension of danger caused by the defendant.' 2 Wharton, supra, § 557.

Thus, the force or fear must be the moving cause inducing the victim to part unwillingly with his property. State v. Parsons, 44 Wash. 299, 87 P. 349, 7 L.R.A.,N.S., 566 (1906). It must overcome the victim's resistance. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 27 A.L.R. 1291 (1922). It must compel one to part with his property. Harris v. State, 118 Tex.Cr.R. 597, 39 S.W.2d 888 (1931). It must be such that the power of the owner to retain his property is overcome. People v. Williams, 23 Ill.2d 295, 178 N.E.2d 372 (1961).

There is no direct evidence that the fist in the back caused the victim to part with his property. From the fist in the back, we cannot infer that the victim was compelled to part with his wallet or that he apprehended danger. See Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1961).

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  • United States v. Montes
    • United States
    • U.S. District Court — District of New Mexico
    • 22 de maio de 2017
    ...but whether the force was sufficient to compel the victim to part with his property." New Mexico v. Sanchez, 1967-NMCA-009, ¶ 11, 78 N.M. 284, 430 P.2d 781. The New Mexico Court of Appeals elaborated on this point in Curley, holding that the force element of robbery is satisfiedwhen the def......
  • United States v. King, Civ. No. 16-501 MV/KK
    • United States
    • U.S. District Court — District of New Mexico
    • 1 de dezembro de 2016
    ...use of force; (3) armed robbery by threat of force; or (4) armed robbery by use of force."); New Mexico v. Sanchez, 1967-NMCA-009, ¶ 12, 78 N.M. 284, 430 P.2d 781 (to support robbery conviction, threatened use of force must be "such as to cause a reasonable man to apprehend danger and that ......
  • United States v. Montes, Civ. No. 16-606 MCA/KK
    • United States
    • U.S. District Court — District of New Mexico
    • 22 de maio de 2017
    ...used, but whether the force was sufficient to compel the victim to part with his property." New Mexico v. Sanchez, 1967-NMCA-009, ¶ 11, 78 N.M. 284, 430 P.2d 781. The New Mexico Court of Appeals elaborated on this point in Curley, holding that the force element of robbery is satisfiedPage 1......
  • United States v. King
    • United States
    • U.S. District Court — District of New Mexico
    • 1 de dezembro de 2016
    ...force; (3) armed robbery by threat of force; or (4) armed robbery by use of force."); New Mexico v. Sanchez, 1967-NMCA-009, ¶ 12, 78 N.M. 284, 430 P.2d 781 (to support robbery conviction, threatened use of force must be "such as to cause a reasonable man to apprehend danger and that he coul......
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