State v. Boeglin
Decision Date | 18 January 1977 |
Docket Number | No. 2662,2662 |
Citation | 559 P.2d 1220,90 N.M. 93,1977 NMCA 4 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Phillip BOEGLIN, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
A store was broken into, the glass in a showcase was smashed and five pistols taken. Defendant was apprehended within two to five minutes after the store's silent alarm was triggered. He has been convicted of aggravated burglary and five counts of larceny. Issues listed in his docketing statement, but not briefed, are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). Two issues are presented. They involve: (1) the order of exercising peremptory challenges, and (2) the number of larcenies committed.
Rule Crim.P. 39(b) states: 'The State shall accept or make any peremptory challenge as to each juror before the defense is called upon to pass, accept or exercise a peremptory challenge as to the juror.' See also § 19--1--14, N.M.S.A.1953 (Repl.Vol. 4).
Over defendant's objection, the trial court required the parties to exercise their peremptory challenges alternately. This violated the rule and is reversible error if defendant has been harmed by the error. Defendant asserts he was harmed because he exercised all of his peremptory challenges; he thus distinguishes Territory v. Padilla, 12 N.M. 1, 71 P. 1084 (1903) where all peremptory challenges were not exercised. Defendant refers us to Territory v. Prather, 18 N.M. 195, 135 P. 83 (1913) which holds that a jury must be selected in the required manner and a material departure from the required manner is grounds for reversal if a party has been deprived of a substantial right.
Defendant makes no claim that he has been harmed by use of the alternate method in exercising peremptory challenges. He does not claim that the jurors who tried the case were other than fair or impartial or that his peremptory challenges would have been exercised differently if the trial court had complied with the rule. See State v. Sanchez, 58 N.M. 77, 265 P.2d 684 (1954). The error did not amount to reversible error. State v. Sluder, 82 N.M. 755, 487 P.2d 183 (Ct.App.1971); State v. Gonzales, 82 N.M. 388, 482 P.2d 252 (Ct.App.1971).
number of Larcenies
Defendant asserts that he could be sentenced for only one larceny under the 'single larceny doctrine'. The aspect of the doctrine involved in this case is the taking of two or more articles of property from the same owner at the same time and place. We are not concerned here with a theft from different owners, see State v. Bolen, 88 N.M. 647, 545 P.2d 1025 (Ct.App.1976), or with a series of thefts, see Annot., 53 A.L.R.3d 398 (1973).
The doctrine has existed for some time. Lorton v. State, 7 Mo. 55, 37 Am.Dec. 179 (1841) states that the 'stealing of several articles of property, at the same time and place, undoubtedly constitutes but one offense against the laws . . ..' See also Hudson v. State, 9 Tex.App. 151, 35 Am.Rep. 732 (1880). Although old, the doctrine has current applicability. 2 Anderson, Wharton's Criminal Law and Procedure, § 450 (1957); see Annot., 53 A.L.R.3d, supra; Annot., 37 A.L.R.3d 1407 (1971).
Why is the taking of several articles at one time and place 'undoubtedly' but one offense? One justification is that there has been but one transaction, even when there are several takings or a certain time span is involved in removing the articles. State v. Hall, 111 Kan. 458, 207 P. 773 (1922); State v. Mjelde, 29 Mont. 490, 75 P. 87 (1904). As stated in State v. Larson, 85 Iowa 659, 52 N.W. 539 (1892):
'While it is true that, if the taking were felonious, the larceny was completed with the taking of the first sack (of flaxseed) if no more had been taken, but, more being taken as a part of the same transaction, they all became the subject of the same larceny.'
Another justification is that the taking of the several articles is with but one criminal intent. State v. Allen, 59 N.M. 139, 280 P.2d 298 (1955). Whether the explanation is in terms of one transaction or one criminal intent, the theory is the same--that only one criminal act has occurred. See 2 Anderson, Wharton's Criminal Law and Procedure, § 450, supra.
By defining the larceny in terms of one transaction or one criminal intent, a double jeopardy problem is avoided. An offense may not be split into many parts and made the subject of multiple prosecutions. State v. Mullenax,124 W.Va. 243, 20 S.E.2d 901 (1942). Annot., 92 Am.St.Rep. 89 (1902) at page 117 states that a theft of one thousand dollars is one theft and not a thousand thefts, and the defendant can be prosecuted only once for the offense.
This Court in State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct.App.1975) considered the meaning of 'same offense' in relation to the prohibition against double jeopardy. We considered the various approaches and held that we would look to the policies behind the prohibition against double jeopardy. The Court of Appeals opinion is referred to hereinafter as Tanton 1.
The Supreme Court reversed Tanton 1; State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975), hereinafter referred to as Tanton 2. The meaning of double jeopardy was limited in Tanton 2 to identical offenses, or situations where collateral estoppel, the concept of lesser included offenses or the same evidence test applied. Tanton 2 at page 336, 540 P.2d 813.
Defendant asserts he can be convicted of only one larceny in this case under the same evidence test. This test is whether the facts offered in support of one offense would sustain a conviction of the other offense. Tanton 2, supra.
The larcenies of which defendant has been convicted were charged in Counts II through VI of the information. Each count charged a theft on the same date from the same place. However, each count charged the theft of a different pistol. Defendant states: 'The facts offered in support of Count II would have sustained a conviction of either Counts III, IV, V, or VI, except for the precise item stolen.' The majority opinion took a similar approach in State v. Maestas, 87 N.M. 6, 528 P.2d 650 (Ct.App. 1974), where the difference between the two charges was in the controlled substance possessed. Tanton 2, supra, expressly overruled State...
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