State v. Martinez
| Decision Date | 08 May 1967 |
| Docket Number | No. 8296,8296 |
| Citation | 427 P.2d 260,1967 NMSC 103,77 N.M. 745 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Mellsandro Jose MARTINEZ, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
At defendant's request, informations charging him with (1) grand larceny, (2) unlawfully breaking and entering, and (3) assault with a deadly weapon were consolidated for trial. A jury returned a verdict of guilty of all three crimes. Martinez was sentenced to serve not less than one nor more than ten years upon the conviction of grand larceny and not less than three years upon the conviction of assault with a deadly weapon, the sentences to run consecutively. No sentence was imposed for the conviction of the charge of breaking and entering. Thereafter, relief was denied upon a motion brought pursuant to Rule 93 attacking the judgment and sentence. This appeal followed.
Defendant contends that because the two offenses for which he was sentenced occurred at the same time they were part of a continuous criminal act, and merged in the greater offense of grand larceny, so that only a single sentence should have been imposed. We do not agree.
The test of whether one criminal offense has merged in another is not, as defendant contends, whether the two criminal acts are successive steps in the same transaction but whether one offense necessarily involves the other. State v. Quintana, 69 N.M. 51, 364 P.2d 120. In Quintana we said that larceny was necessary to, or incidental to the crime of armed robbery, was not a separate and distinct offense from that of armed robbery, and thus merged with the graver offense of armed robbery so as to prevent a double punishment by a sentence for each crime. However, in Quintana, we quoted with approval from Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920, 921, as follows:
* * *'
Applying that rule, we hold assault with a deadly weapon, even though committed in connection with a larceny is a separate criminal act, as distinguished from a necessary ingredient of the crime of larceny, and, accordingly,...
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Neller v. State
...no finding on the subject, nor was one requested. Under the circumstances, we could well refuse to consider the point. State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967). However, in the light of the facts appearing in the record and the cases cited above we feel justified in ruling on the......
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State v. Maestas
...susceptible of only one punishment. This test was followed in State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966); State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967) and several others ending with Campion v. State, 84 N.M. 137, 500 P.2d 422 Third. 'Same evidence' and 'Same transaction' te......
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State v. Bachicha
...from this court. Our supreme court has not directly confronted the propriety of the fact-based approach to merger. Cf. State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967) (apparently adopting Blockburger test); State v. McGuire, 110 N.M. at 308, 795 P.2d at 1000 ("when the facts used to est......
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State v. McAfee
...P.2d 298 (1955); State v. Quintana, supra; State v. Montano, 69 N.M. 332, 367 P.2d 95 (1961); State v. Blackwell, supra; State v. Martinez, 77 N.M. 745, 427 P.2d 260, opinion issued May 8, 1967. In Quintana it was held that grand larceny was not a separate and distinct offense from armed ro......