State v. Allen, 5841
| Decision Date | 21 February 1955 |
| Docket Number | No. 5841,5841 |
| Citation | 1955 NMSC 15,59 N.M. 139,280 P.2d 298 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Weldon ALLEN, alias Pete Allen, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Heidel & Swarthout, Lovington, for appellant.
Richard H. Robinson, Atty. Gen., Jack A. Smith, C. C. McCulloh, Ass't Attys. Gen., for appellee.
The appellant was convicted of theft from person in violation of Sec. 40-45-9, 1953 Comp. (formerly Sec. 41-4509, 1941 Comp.). The information contained only one count but charged the stealing of $80 in cash and one bottle of vodka.
On a second trial of the case the state first proved the theft of the vodka. At the conclusion of testimony on that point by the prosecuting witness, the defendant moved the trial court to require the state to elect whether it would rely for a conviction on the theft of the vodka or of the money, reminding it of the testimony in the former case which, he claimed, showed the thefts were separate and distinct transactions. The motion was denied with the following statement:
The motion was renewed and again denied at the conclusion of the testimony for the state, and the two rulings are the sole basis relied upon for a reversal here.
The evidence may be summarized as follows: The prosecuting witness, Halpin, began the night drinking in Hobbs, New Mexico, and later had a friend take him to a nightclub near the New Mexico-Texas line where after a time he bought a bottle of vodka and left the building, intending to return to Hobbs. As he left the building the defendant and three companions accosted him and offered to trade some beer for a part of the vodka. The offer was refused, whereupon the defendant and his companions knocked Halpin to the ground, grabbed the bottle of vodka and drove east toward their home at Seminole, Texas. Halpin walked west on the road toward Hobbs and in a short time saw a car coming from the east which he believed to be the one in which the parties who had taken his vodka were riding. Thereupon Halpin went through the right-of-way fence into the brush and hid. He says the defendant and his companions followed him into the brush but he escaped detection and his pursuers then left and drove toward Hobbs. Halpin came out of the brush and started walking west just outside of the right-of-way fence. Then another car occupied by several Hobbs youths out looking for a fight began to chase the car in which the defendant and his party were riding, intent, as one of them testified, on whipping those they were following although they were strangers. The defendant and his companions got into Hobbs without being caught and their pursuers abandoned the chase. The defendant and his friends then drove back east toward the state line, discovered Halpin, caught and whipped him and stole his pocketbook containing $80. The cash was removed and the pocketbook and papers therein were partially destroyed by fire and left between the state line and Seminole.
The defendant and the Attorney General agree that the law is correctly stated in 36 C.J. (Larceny) Sec. 219, p. 798, as follows:
'Where the property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent, impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act.' See, also, 52 C.J.S., Larceny, Sec. 53.
The rule is tersely stated in People v. Cox, 1941, 286 N.Y. 137, 36 N.E.2d 84, 86, 136 A.L.R. 943, 946:
'* * * As long as the larceny is held to be pursuant to a single intent,...
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State v. Torres
...doctrine. Id. ¶¶ 3 -5. The single-larceny doctrine was expressly adopted by this Court in State v. Allen , 1955-NMSC-015, ¶¶ 4-7, 59 N.M. 139, 280 P.2d 298. It counsels, "when several articles of property are stolen by the defendant from the same owner at the same time and at the same place......
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State v. Desimone
...127 N.J. 321, 604 A.2d 596 (1990). Other states have reached the same conclusion under their common law. See, e.g., State v. Allen, 59 N.M. 139, 140-41, 280 P.2d 298 (1955); Lockhead v. State, 85 Tex.Crim. 459, 213 S.W. 653, 654 (App.1919); State v. Vining, 2 Wash.App. 802, 472 P.2d 564, 56......
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State v. Torres
...Supreme Court applied the single-larceny doctrine to a series of takings from a single owner. State v. Allen , 1955-NMSC-015, ¶ 5, 59 N.M. 139, 280 P.2d 298. "There, [the Court] focused not on the number of transactions, but on the intent of the defendant[,]" stating:Where the property is s......
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State v. Borja-Guzman
...articles of property are stolen from the same owner at the same time and place, only one larceny is committed); State v. Allen, 59 N.M. 139, 140-141, 280 P.2d 298, 299 (1955) (where trial court could not find, as a matter of law, that a series of acts were either one or two offenses it beca......