State v. Serrano

• Decision Date: 13 July 1964
• Docket Number: No. 7426,7426
• Citation: 1964 NMSC 161,394 P.2d 262,74 N.M. 412
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Richard SERRANO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 262

394 P.2d 262

74 N.M. 412

STATE of New Mexico, Plaintiff-Appellee, v. Richard SERRANO, Defendant-Appellant.

No. 7426.

Supreme Court of New Mexico.

July 13, 1964.

Hart & Brockman, Tucumcari, for appellant.

Earl E. Hartley, Atty. Gen., George Richard Schmitt, James E. Snead, Asst. Attys. Gen., Santa Fe, for appellee.

GEORGE L. ZIMMERMAN, District Judge.

This is an appeal from a conviction under Sec. 40-1-6, N.M.S.A.1953.

'Any person who shall attempt to commit any felony that shall fail in being committed, the punishment for which attempt is not otherwise prescribed by law, shall upon conviction thereof, be punished by imprisonment for not more than three (3) years nor less than six (6) months, or by fine not exceeding one thousand dollars ($1,000.00), or by both such fine and imprisonment at the discretion of the court trying the cause.'

Under points I and II defendant contends that an information charging 'Attempting to break and enter the Westside Grocery in the nighttime with the intent to take property therefrom on or about April 27, 1963, contrary to 40-1-6, NMSA' fails to allege a felony offense. Defendant further contends that larceny of property over the value of $50.00 is an essential element of proof in a charge of attempting to commit an offense under Sec. 40-9-6, N.M.S.A.1953.

'Every person who shall break and enter, in the night-time, any office, shop, or warehouse, not adjoining to nor occupied as a dwelling-house, with the intent to commit the crime of murder, rape, robbery, larceny, or any other felony, shall be punished by imprisonment in the state penitentiary not more than three years nor less than one year.'

From an examination of the foregoing statutory sections the requirement for a conviction for an attempted felony demands that the attempt must be to commit a felony as described in Sec. 40-9-6, supra, i. e., murder, rape, robbery, larceny, or any other felony. The offense must be a felony. To attempt to commit a felony is a felony; however, to attempt to commit a misdemeanor is not a felony. The attempted offense alleged herein is breaking and entering into places other than dwellings with the intent to commit larceny therein.

The parties agree that Sec. 40-9-6, supra, does not define the term 'larceny' used therein. Defendant suggests that the meaning to be assigned to the term 'larceny' is 'grand larceny' as defined in Sec. 40-45-2, N.M.S.A.1953:

'Every person who shall commit the crime of larceny, by stealing of the property of another any money, goods or chattels, or any bank note, bond, promissory note, bill of exchange, or other bill, order or certificate, or any books of accounts for or concerning money or goods, due or to become due, or to be delivered, or any deed of writing, containing a conveyance of land or any other valuable contract in force, or any writ, process or public record, if the property stolen shall exceed the value of fifty dollars [$50.00], shall be punished as provided in section 41-5401 [40-45-1]. * * *'

The answer is set forth in Secs. 40-45-6 and 40-45-7, N.M.S.A.1953:

'40-45-6. Every person who shall be convicted of stealing from a dwelling-house, store, warehouse or other house, either in the day or night, any goods, chattels money or property, which exceed the value of ten dollars [$10.00], shall be fined in a sum not less than ten dollars [$10.00] nor more than five hundred dollars [$500], or be imprisoned not less than one month nor more than five years, or both, at the discretion of the court trying the cause.'

'40-45-7. Every person who shall be convicted of stealing from any dwelling-house, store, warehouse or outhouse, either in the day or nighttime, any goods, chattels, money or property, when the same is of less value than ten dollars [$10.00], shall be fined in a sum not less than ten dollars [$10.00] nor more than five hundred dollars [$500], or be imprisoned not less than one month nor more than five years, or both, at the discretion of the court trying the cause.'

Stealing property of any value is, under one or the other of the sections, a felony. Therefore, the requirement of value in the information charged in this case need not be specified and we hold that the term 'larceny' as used in Sec. 40-9-6, supra, is not limited to 'grand larceny' as defined in Sec. 40-45-2, supra, and the value of over $50.00 is not an essential element of proof in a charge of attempting to commit an offense under Secs. 40-1-6 and 40-9-6, supra.

With this determination under point III, we hold that the court did not err in giving the following instructions:

'9. You are further instructed that breaking and entering a store in the nighttime with intent to take property is a felony.'

'12. The defendant is charged in the information with attempting to break and enter the Westside Grocery in the nighttime with the intent to take property therefrom. If you believe from the evidence to your satisfaction and beyond a reasonable doubt that the defendant attempted to break and enter in the nighttime the Westside Grocery with intent to take, steal and carry away any goods or other property therein, and to convert and appropriate said property to his own use and to deprive the owner permanently of the ownership of said property, and that said goods or property were of some value, then you should find the defendant guilty as charged in the information.'

Defendant's final point is that the court erred in overruling ...