State v. Rogers, 818

Docket NºNo. 818
Citation1972 NMCA 53, 496 P.2d 169, 83 N.M. 676
Case DateApril 07, 1972
CourtCourt of Appeals of New Mexico

Page 169

496 P.2d 169
83 N.M. 676
STATE of New Mexico, Plaintiff-Appellee,
Oscar ROGERS, also known as Joe Baker, Defendant-Appellant.
No. 818.
Court of Appeals of New Mexico.
April 7, 1972.

[83 NM 676] Harvey C. Markley, Lovington, for defendant-appellant.

David L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen. Santa Fe, for plaintiff-appellee.


SUTIN, Judge.

Rogers was charged, convicted and sentenced for burglary contrary to § 40A--16--3, N.M.S.A.1953 (Repl.Vol. 6, Supp.1971). Rogers appeals.

We reverse.

Section 40A--16--3, supra, reads in part as follows:

Burglary consists of the unauthorized entry of any * * * structure, * * * with the intent to commit any felony or theft therein.

On April 8, 1971, at 8:30 p.m., Rogers drove into Jim's Conoco Station in Hobbs, New Mexico, walked into the office and asked for a crescent wrench to use to take off a battery. The attendant told him that tools were not lent unless a dollar was deposited. Rogers did not have a dollar. The attendant went out of the office to service a customer and returned to the office. Rogers viewed the attendant opening the cash register. While the attendant serviced another car, Rogers remained in the office. Suddenly, the attendant ran inside. The cash register was open, all of the paper money, about $30 or $35, was gone. The attendant asked Rogers to put the money back, and Rogers said 'no.'

The trial court instructed the jury that the material allegations of the charge of burglary were:

1. That the defendant, without authority, did enter a structure, to-wit: Jim's Conoco Station, Hobbs, New Mexico.

Page 170

[83 NM 677] 2. That the defendant entered such structure with the intent to commit a theft therein.

3. That said act or acts were committed by the defendant knowingly, unlawfully and feloniously.

This instruction became the law of this case. State v. Rayos, 77 N.M. 204, 420 P.2d 314 (1967). It should be noted that three essential ingredients exist. We are concerned only with the first.

There was no evidence that Rogers entered the Conoco structure 'without authority.' This was a business which invited the public to enter so that permission or consent of the owner is implied. Rogers' entry was authorized. The criminal offense committed thereafter was not burglary. A person who enters a store open to the public with intent to shoplift (§ 40A--16--20, N.M.S.A.1953 (Repl.Vol. 6, Supp.1971)), or commit larceny (§ 40A--16--1), is not...

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13 cases
  • State v. Thibeault
    • United States
    • Supreme Judicial Court of Maine (US)
    • May 25, 1979
    ...lawful possessor's consent is a complete defense. For example, in State v. Dunn, 263 La. 58, 267 So.2d 193 (1972), and in State v. Rogers, 83 N.M. 676, 496 P.2d 169 (Ct.App.1972), the courts construed the "unauthorized entry" burglary statutes of their respective states as recognizing conse......
  • State v. Harper, 62196
    • United States
    • United States State Supreme Court of Kansas
    • January 19, 1990
    ...24] if it intended burglary to include any entry with the intent to steal. 263 La. at 63, 267 So.2d 193. Furthermore, in State v. Rogers, 83 N.M. 676, 496 P.2d 169 (1972), the court concluded that intent at the time of entry was not the sole element of burglary and, thus, the element of "wi......
  • State v. Blair, 12458
    • United States
    • Supreme Court of South Dakota
    • January 4, 1979 is open to the public cannot be the basis for a burglary charge. See State v. Taylor, 17 Or.App. 499, 522 P.2d 499; State v. Rogers, 83 N.M. 676, 496 P.2d 169; People v. Carstensen, 161 Colo. 249, 420 P.2d 820; Smith v. State, Alaska, 362 P.2d 1071; People v. Jones. 50 A.D.2d 750, 376 N.......
  • State v. Lozier, 64211
    • United States
    • Supreme Court of Louisiana
    • October 8, 1979
    ...therein. People v. Carstensen, 161 Colo. 249, 420 P.2d 820 (1966); State v. Taylor, 17 Or.App. 499, 522 P.2d 499 (1974); State v. Rogers, 83 N.M. 676, 496 P.2d 169 (N.M.App.1972); Smith v. State, 362 P.2d 1071 (Alaska, 1961). In those states the "entry . . . must be unlawful in itself, that......
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