2023 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 16 - Larceny
Section 30-16-1 - Larceny.
A. Larceny consists of the stealing of anything of value that belongs to another.
B. Whoever commits larceny when the value of the property stolen is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
C. Whoever commits larceny when the value of the property stolen is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
D. Whoever commits larceny when the value of the property stolen is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
E. Whoever commits larceny when the value of the property stolen is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
F. Whoever commits larceny when the value of the property stolen is over twenty thousand dollars ($20,000) is guilty of a second degree felony.
G. Whoever commits larceny when the property of value stolen is livestock is guilty of a third degree felony regardless of its value.
H. Whoever commits larceny when the property of value stolen is a firearm is guilty of a fourth degree felony when its value is less than two thousand five hundred dollars ($2,500).
History: 1953 Comp., § 40A-16-1, enacted by Laws 1963, ch. 303, § 16-1; 1969, ch. 171, § 1; 1979, ch. 118, § 1; 1987, ch. 121, § 1; 2006, ch. 29, § 2.
ANNOTATIONSCross references. — For sheriff's duty to search for stolen livestock, see 29-1-2 NMSA 1978.
For description of cattle in indictment, see 31-7-1 NMSA 1978.
For provision making disposal of livestock levied upon grand larceny, see 39-6-3 NMSA 1978.
For provision on recovery of lost or stolen property from junk dealers, see 57-7-4 NMSA 1978.
For possession of livestock by person accused of theft without bill of sale being prima facie evidence of illegal possession, see 77-9-21 NMSA 1978.
For livestock board inspector's duty to search for stolen livestock, see 77-9-33 NMSA 1978.
For failure of person killing cattle or sheep to show hide to inspector as evidence of larceny or receipt of stolen livestock, see 77-17-14 NMSA 1978.
The 2006 amendment, effective July 1, 2006, increased the value of property in Subsection B from $100 or less to $250 or less; increased the value of property in Subsection C from more than $100 but less than $250 to more than $250 but less than $500; and increased the value of property in Subsection D from more than $250 to more than $500.
The 1987 amendment, effective June 19, 1987, added the third paragraph, substituted "two hundred fifty dollars ($250)" for "one hundred dollars ($100)" in the fourth paragraph, and substituted "is over" for "exceeds" and "more than" for "over" in the fifth paragraph.
I. GENERAL CONSIDERATION.
Larceny of livestock category constitutional. — The portion of larceny statute, which made it a felony to steal livestock regardless of its value, applied to all persons who steal livestock in the state of New Mexico, and did not constitute special legislation contrary to N.M. Const., art. IV, § 24, nor did it deny defendant equal protection under the law. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521 (decided under prior law).
Punishment under former law. — The punishment of the crime of stealing mules by not less than 30 lashes on the bare back was not "cruel and inhuman" under the United States constitution. Garcia v. Territory, 1869-NMSC-001, 1 N.M. 415 (decided under prior law).
Restitution does not wipe out crime of larceny and does not deprive state of the right to prosecute for the crime. State v. Odom, 1974-NMCA-118, 86 N.M. 761, 527 P.2d 802.
Legislature to define crimes. — It cannot be gainsaid that the hide of neat cattle is a part of the animal and its removal from the carcass without permission of the owner and subsequent appropriation thereof constitutes theft; under former law the legislature said it shall constitute the crime of larceny, and it is no part of the duty of the courts to inquire into the wisdom, the policy or the justness of an act of the legislature. State v. Thompson, 1953-NMSC-072, 57 N.M. 459, 260 P.2d 370 (decided under prior law).
Owner's consent to taking. — In order for an owner to consent to a theft, more than a passive assent to the taking is required. State v. Ontiveros, 1990-NMCA-112, 111 N.M. 90, 801 P.2d 672, cert. denied, 111 N.M. 77, 801 P.2d 659.
A person does not consent to his property being taken by purposely leaving it exposed, or failing to resist the taking, even though he may know that another intends to come and steal it. State v. Ontiveros, 1990-NMCA-112, 111 N.M. 90, 801 P.2d 672, cert. denied, 111 N.M. 77, 801 P.2d 659.
Pretended cooperation of an agent of an owner in effecting the theft from the owner is not consent. State v. Ontiveros, 1990-NMCA-112, 111 N.M. 90, 801 P.2d 672, cert. denied, 111 N.M. 77, 801 P.2d 659.
An owner's nonconsent to larceny may be established by the facts and circumstances in evidence. State v. Ontiveros, 1990-NMCA-112, 111 N.M. 90, 801 P.2d 672, cert. denied, 111 N.M. 77, 801 P.2d 659.
Authorized sentence unassailable. — Where defendant, who pleaded guilty to larceny of property worth over $2500, a third degree felony, was sentenced to the term authorized by law for a third degree felony his assertion that codefendants were sentenced for a fourth degree felony on the basis of "the same identical act" and that the state had reduced the charge against one codefendant to a fourth degree felony provided no basis for post-conviction relief. State v. Follis, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655.
Ownership conclusively determined. — A defendant in a larceny case was, after conviction, barred from litigating the question of ownership of the stolen property with owner thereof as charged in the indictment. Supulver v. Gilchrist & Dawson, Inc., 1922-NMSC-060, 28 N.M. 339, 211 P. 595.
Evidence held sufficient to sustain larceny conviction. State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614.
Tort liability to thief. — The rules of law governing the liability of appellee for shooting and wounding appellant while stopping a trespass or the theft of watermelons are the same whether the proceedings be civil or criminal. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.
II. MULTIPLE PROSECUTIONS OR PUNISHMENTS.
Larceny of firearm punishable as separate offense. — Under the structure of this section, where the property stolen includes both generic property and a firearm, larceny of the firearm is punishable as a separate offense. State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.
Unit of prosecution under livestock larceny statute. — In consolidated appeals, where the state charged each defendant with one count of livestock larceny per animal allegedly stolen, resulting in multiple-count criminal informations, and where, prior to trial, defendants filed motions to merge or dismiss the multiple charges, asserting that they instead may only be prosecuted for each episode of theft, the district court did not err in granting the defendants' motions, because in the livestock larceny statute, the New Mexico legislature did not intend a unit of prosecution based on the number of animals stolen in an episode of theft. The livestock larceny statute, instead, expresses an intent to prosecute defendants for each episode of theft. State v. Torres, 2022-NMSC-024, aff'g on other grounds, 2021-NMCA-045, 495 P.3d 1141 and A-1-CA-38561, mem. op. (N.M. Ct. App., Sept. 30, 2020) (nonprecedential).
Single larceny doctrine. — The single larceny doctrine, also known as the single criminal intent doctrine, is a canon of construction used when the legislature's intent regarding multiple punishments is ambiguous. When several articles of property are stolen by the defendant from the same owner at the same time and at the same place, only one larceny is committed. State v. Torres, 2021-NMCA-045, cert. granted.
Single larceny doctrine applied to interpret the unit of prosecution for larceny of livestock. — In consolidated appeals, where defendants, in separate and unrelated incidents of cattle rustling, were each charged with multiple counts of larceny of livestock based on one count per head of cattle stolen, and where the district court dismissed multiple counts against each defendant, concluding that § 30-16-1(G) NMSA 1978, defined the unit of prosecution as a single offense regardless of the number of animals taken, reasoning that the term "livestock" is used by our legislature to refer to animals in the aggregate, and that the term "livestock" is plural and, accordingly, it is the aggregate of the parts such that a single offense exists irrespective of whether one or ten animals were taken, the district court did not err in dismissing multiple counts of larceny or in concluding that the unit of prosecution for larceny of livestock is a single offense regardless of the number of animals taken, because applying the single larceny doctrine, it clarifies that a taking of multiple head of cattle at the same time and place, or a series of takings from a single owner with a single criminal intent, constitutes but one larceny. State v. Torres, 2021-NMCA-045, cert. granted.
Larceny of several articles. — Under the "single larceny doctrine," as a matter of judicial policy, a taking of two or more articles of property from the same owner at the same time and place should be prosecuted as only one larceny, even though separate convictions would not be barred by double jeopardy. State v. Boeglin, 1977-NMCA-004, 90 N.M. 93, 559 P.2d 1220.
Nothing in the statutory language indicates that the legislature intended to create a separate offense for each taking of property belonging to different persons during a continuous episode. State v. Brown, 1992-NMCA-028, 113 N.M. 631, 830 P.2d 183, cert. denied, 113 N.M. 636, 830 P.2d 553.
Charge of larceny is necessarily included in charge of robbery. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.
Grand larceny and armed robbery merged. — Where the act of grand larceny was necessary to, or incidental to, the crime of armed robbery which the defendant committed, the offense of grand larceny was merged with the graver offense of armed robbery, and hence although the defendant was properly convicted of both armed robbery and grand larceny, he cannot be doubly punished for both of those crimes. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120; State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.
No merger of larceny and burglary. — There is no merger when an accused is charged with both burglary and larceny though the charges stem from one transaction or event. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.
Elements of larceny and burglary differ. — Since stealing is a necessary element of larceny but is not a necessary element of burglary, larceny is not necessarily involved in a burglary; hence, these two crimes do not merge, and defendant could be convicted of and sentenced for both crimes. State v. McAfee, 1967-NMSC-139, 78 N.M. 108, 428 P.2d 647.
Larceny is not a lesser included offense of burglary, since each crime includes an element not contained in the other. Burglary requires entry into a dwelling, whereas larceny does not, and larceny requires an actual taking, whereas burglary does not. Yparrea v. Dorsey, 64 F.3d 577 (10th Cir. 1995).
Assault and larceny separate offenses. — 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, there may be a conviction and punishment for both. State v. Martinez, 1967-NMSC-103, 77 N.M. 745, 427 P.2d 260.
Unlawful taking of motor vehicle not included offense. — Violation of 64-9-4A, 1953 Comp. (now repealed), by unlawful taking of a motor vehicle, is not necessarily included in offense of larceny, since the criminal intent requisite for the crime of larceny is the intent to deprive the owner of his property permanently, while a violation of 64-9-4A, 1953 Comp. (now repealed), does not require this intent. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36 (decided under prior law, statute repealed).
Receipt of stolen goods by thief himself. — A thief who holds on to stolen property cannot be guilty of receiving the stolen property because he cannot receive it from himself, nor can he violate the statute by retaining the stolen property because larceny is a continuing offense; the thief's disposition of the property, however, is action separate from the larceny, and it is neither absurd nor unreasonable to hold that the thief violates 30-16-11 NMSA 1978 when he disposes of the property that he stole. State v. Tapia, 1976-NMCA-042, 89 N.M. 221, 549 P.2d 636, cert. denied, 89 N.M. 206, 549 P.2d 284.
Asportation of stolen property. — Larceny was a continuing offense, and if property was stolen in one county and taken by the thief into another, he was guilty of a new caption and asportation in the latter county. State v. McKinley, 1924-NMSC-052, 30 N.M. 54, 227 P. 757; State v. Meeks, 25 N.M. 231, 180 P. 295.
Transporting stolen livestock and larceny of livestock. — Defendant's conviction for transporting stolen livestock, when considered with his conviction for larceny of livestock, violated his constitutional right to be free of double jeopardy. State v. Clark, 2000-NMCA-052, 129 N.M. 194, 3 P.3d 689, cert. denied, 129 N.M. 207, 4 P.3d 35.
Double jeopardy. — Because defendant's case was a single prosecution case, under which the single larceny doctrine was implicated, defendant's double jeopardy rights were violated by defendant's two punishments for violations of two clauses of this section. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, rev'd, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162 (2005).
Municipal court conviction of larceny is not the same offense for purposes of double jeopardy as a district court conviction of theft of a credit card. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92.
Theft of credit card. — Larceny is a lesser included offense of theft of a credit card. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92.
III. ELEMENTS OF OFFENSE.
Corpus delicti. — The corpus delicti of larceny is constituted of two elements: that the property was lost by the owner, and that it was lost by a felonious taking. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512; State v. Buchanan, 1966-NMSC-045, 76 N.M. 141, 412 P.2d 565.
Ownership of another. — In cases of larceny and embezzlement, ownership of the property stolen or embezzled must be established in some person or entity capable of owning property. State v. Parsons, 1917-NMSC-084, 23 N.M. 520, 169 P. 475.
Ownership issues. — Every larceny included a trespass to possession, which could not exist unless the property was in possession of person from whom it was charged to have been stolen. State v. Curry, 1927-NMSC-015, 32 N.M. 219, 252 P. 994.
Particular ownership not essential. — Neither an allegation or proof of ownership in a particular person is an essential element of the offense of larceny, it being sufficient that the proof disclosed that property stolen belonged to one other than defendant. State v. Ford, 1969-NMCA-092, 80 N.M. 649, 459 P.2d 353.
Violence not an element. — Larceny, although an essential element of the offense of robbery, is distinguished primarily on the basis of the violence which precedes or accompanies the taking; robbery is a compound or aggravated larceny, composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking. State v. Wingate, 1975-NMCA-035, 87 N.M. 397, 534 P.2d 776.
"Steal" connotes intent. — Under the statute using the term "steal," when that term is used in the instruction, it carries with it a meaning that the taking must have been with a felonious intent. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512.
Specific intent to permanently deprive requisite. — One of the essential elements of larceny is that of intent on the part of defendant to permanently deprive the owners of their property; hence, a taking of property by defendant with the intent of using it temporarily and then returning it would not constitute larceny. State v. Parker, 1969-NMCA-056, 80 N.M. 551, 458 P.2d 803, cert. denied, 80 N.M. 607, 458 P.2d 859.
As distinguished from wrongful taking of car. — Larceny includes the concept of criminal intent, and in addition, the intention to permanently deprive the owner of possession of his property, such intention to permanently deprive is not an essential element of 64-9-4A, 1953 Comp., prohibiting intentional taking of a motor vehicle without consent of the owner. State v. Austin, 1969-NMCA-095, 80 N.M. 748, 461 P.2d 230 (decided under prior law, statute repealed).
Embezzlement. — A legislative intent to include the element of intent to permanently deprive the owner of his property in crime of embezzlement cannot be ascertained by comparing the embezzlement statute 30-16-8 NMSA 1978 with this section, because larceny is defined in terms of stealing and comparable language is not used in the embezzlement statute. State v. Moss, 1971-NMCA-117, 83 N.M. 42, 487 P.2d 1347.
Value of livestock immaterial. — Under former law, in prosecution for depriving owner of possession of certain sheep, value of the animals was not material, it did not need to be alleged and if alleged, did not need to be proved. State v. Anaya, 1922-NMSC-059, 28 N.M. 283, 210 P. 567; see also State v. Jaramillo, 1919-NMSC-013, 25 N.M. 228, 180 P. 286; State v. Lucero, 1913-NMSC-011, 17 N.M. 484, 131 P. 491 (prosecutions for larceny of cattle).
Theft from employer. — Since the physical control exercised by an employee over property entrusted to him by his employer is merely custody and not possession, an employee takes the property from his employer's possession, and thereby commits a trespass, when he converts it; he is accordingly guilty of larceny, without regard to whether he entertained such intent at the time he acquired custody, or not. State v. Robertson, 1977-NMCA-044, 90 N.M. 382, 563 P.2d 1175, cert. denied, 90 N.M. 637, 567 P.2d 486.
Aiding and abetting. — To be an aider and abettor in the crime of larceny one must share the criminal intent of the principal; there must be a community of purpose in the unlawful undertaking. State v. Duran, 1974-NMCA-088, 86 N.M. 594, 526 P.2d 188, cert. denied, 86 N.M. 593, 526 P.2d 187.
Effect of intoxication on intent. — Voluntary intoxication alone is not a defense to a charge of larceny, but if a defendant claims he was so intoxicated as to be unable to form the necessary intent, the question of intent is a matter for the jury. State v. Lucero, 1962-NMSC-077, 70 N.M. 268, 372 P.2d 837.
Restitution no bar to conviction. — Fact that defendant turned himself in to owner and worked to make restitution for theft, that owner told defendant he would have larceny charges against him dismissed and that this was not done, if true, provided no legal basis for withdrawal of guilty plea. State v. Odom, 1974-NMCA-118, 86 N.M. 761, 527 P.2d 802.
IV. INDICTMENT AND INFORMATION.
Allegation of ownership. — In indictment charging embezzlement it is essential to aver the felonious conversion of the property of another; unless the rule is modified by statute, the allegation must be as accurate as in an indictment for larceny, and in case of an association, facts must be averred to show that the association could own property in its name. State v. Parsons, 1917-NMSC-084, 23 N.M. 520, 169 P. 475 (decided under prior law).
Laying ownership in representative. — Where owner of stolen mule was dead, indictment charging larceny was to lay the ownership in his representative and not in his estate. Territory v. Valles, 1909-NMSC-026, 15 N.M. 228, 103 P. 984.
Deprivation of owner's possession understood. — Where indictment charged that defendant "then and there, unlawfully and feloniously did take, steal and knowingly drive away, etc." the animal in question, it was not necessary to further allege that the owner was thereby deprived of the immediate possession of the animal. State v. Roberts, 1914-NMSC-004, 18 N.M. 480, 138 P. 208.
Describing stolen animal in indictment as a "cow" was sufficient. Wilburn v. Territory, 1900-NMSC-028, 10 N.M. 402, 62 P. 968.
Word "feloniously" unnecessary. — It was not necessary to use word "feloniously" in information charging larceny from house or other building, under Laws 1869-1870, ch. 26, §§ 1, 2 (former 40-45-6, 40-45-7, 1953 Comp.), to support sentence of three to five years. State v. Jones, 1930-NMSC-007, 34 N.M. 499, 285 P. 501.
Allegation of knowledge. — The third crime defined by 79, 1897 C.L. (former 40-4-17, 1953 Comp.), of knowingly killing or otherwise depriving the owners of animals of their immediate possession, was a purely statutory one; use of word "knowingly" made knowledge an element of the crime, and an indictment failing to allege it in words of statute or words of similar import failed to state the offense. Territory v. Cortez, 1909-NMSC-010, 15 N.M. 92, 103 P. 264 (decided under prior law).
Allegation that defendant "committed crime of larceny" would be sufficient where the crime constituted both statutory grand larceny and common-law larceny. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444 (decided under prior law).
Information adequate. — Information charging grand larceny, particularized by referring to section relating to grand larceny, was sufficient where crime was covered by that section. State v. Lucero, 1962-NMSC-077, 70 N.M. 268, 372 P.2d 837.
Particulars specified. — Where amendment of information which charged defendant with larceny of sheep apprised him of particulars he might have asked for in a bill of particulars, he suffered no injustice. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444.
Defendant entitled to more definite specification. — Where charge simply alleged that defendant did steal and carry away certain articles of personal property of a stated value and being the property of a named individual, and there was not a single word to indicate the nature or character of the property, the charge was too vague and indefinite upon which to deprive defendant of his liberty when he had sought a more definite specification of what constituted the personal property which he was charged with stealing. State v. Campos, 1968-NMSC-177, 79 N.M. 611, 447 P.2d 20.
Selection of charges. — Where defendant was alleged to have stolen $400 in quarters from a change machine by using a rigged bill, he is potentially subject to being charged with both larceny and the misdemeanor offense of cheating a machine or device, and the preemption rationale of the general-specific rule did not preclude prosecution under either or both of the statutes. State v. Davis, 2000-NMCA-105, 129 N.M. 773, 14 P.3d 38, cert. denied, 130 N.M. 17, 16 P.3d 442.
Charging in alternative. — An indictment under Laws 1884, ch. 47, § 15 (former 40-4-17, 1953 Comp.), relating to larceny, embezzlement or killing of animals, could charge that accused committed the crime in each of the specified ways, so long as they were not repugnant. State v. McKinley, 1924-NMSC-052, 30 N.M. 54, 227 P. 757.
Some single offenses were of a nature to be committed by many means, and a count was not necessarily double which charged several of the means, if they were not repugnant. Territory v. Harrington, 1912-NMSC-006, 17 N.M. 62, 121 P. 613; see also Territory v. Eaton, 1905-NMSC-011, 13 N.M. 79, 79 P. 713.
Additional details surplusage. — Information charging defendant with stealing a washing machine belonging to a certain company, from the company warehouse, of the value of $300, which used the term "grand larceny" and referred to the statutory section defining grand larceny, sufficiently charged defendant of the crime of grand larceny, and not larceny from a warehouse, as defendant contended; the additional averment that the machine was stolen from the company's warehouse was surplusage, its effect, if any, being merely to place an additional burden on the state in proving the case. State v. Johnson, 1955-NMSC-070, 60 N.M. 57, 287 P.2d 247.
Variance not jurisdictional. — In conviction for burglary and larceny, variance between indictment and proof regarding name and address of victim was not jurisdictional and was cured by jury's guilty verdict. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, and cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973).
"Criminal complaint" insufficient to confer jurisdiction. — Order revoking a suspended sentence given defendant on a plea of guilty to charges of burglary and grand larceny contained in a "criminal complaint" filed by sheriff must be reversed, as the defendant's sentence was imposed without jurisdiction in the court, due to lack of a proper charge against him. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.
Designation of crime in bond. — A recognizance which described the alleged offense against the principal as "having sold and thereby deprived the owner thereof of a horse, the same being the crime of larceny" sufficiently designated the crime to bind the sureties on the bond or recognizance. Territory v. Minter, 1907-NMSC-002, 14 N.M. 6, 88 P. 1130.
V. EVIDENCE.
A. IN GENERAL.
Proof of venue. — Venue, like any other fact in a case, could be proven by circumstantial evidence. State v. Lott, 1936-NMSC-024, 40 N.M. 147, 56 P.2d 1029; State v. Mares, 1921-NMSC-048, 27 N.M. 212, 199 P. 111.
Inference of intent to steal. — An intent to steal was an element to be inferred by the jury from the facts and circumstances established upon the trial. Such an inference might be drawn from facts showing that property was taken in one county and driven through several others and kept for 10 or 12 days before it was found and retaken by its owner. State v. McKinley, 1924-NMSC-052, 30 N.M. 54, 227 P. 757.
Exhibit relevant to intent. — Fifty foot cotton rope with pipe T's on one end taken from defendant's car, which was identified as device capable of being used in larceny of signal wire, was relevant and material to preparation and intent of defendant, even though there was no evidence that in fact the exhibit was so used. State v. Hardison, 1970-NMCA-043, 81 N.M. 430, 467 P.2d 1002.
Extra-judicial statements inadmissible. — In prosecution for larceny of scrap metal, defendant's out-of-court statements to witness that codefendant had bought some junk and that he (defendant) was going to haul the junk were properly disallowed as self-serving, and were not admissible as part of res gestae since proffered testimony of witness did not show that they were contemporaneous with a shocked condition or were spontaneous. State v. Hunt, 1972-NMCA-055, 83 N.M. 753, 497 P.2d 755, cert. denied, 83 N.M. 740, 497 P.2d 742.
B. LARCENY OF LIVESTOCK.
Circumstantial evidence. — In prosecution for larceny of cattle, the corpus delicti could be proved by circumstantial evidence. State v. Ortega, 1932-NMSC-003, 36 N.M. 57, 7 P.2d 943.
Direct evidence of nonconsent of the owner to the killing of an animal was not required as a matter of law, and such nonconsent could be shown by circumstantial evidence. State v. Parry, 1920-NMSC-096, 26 N.M. 469, 194 P. 864.
Establishing animal's identity. — It was equally as competent to establish the identity of a stolen animal by a brand as by its color or by any distinguishing mark. Territory v. Valles, 1909-NMSC-026, 15 N.M. 228, 103 P. 984.
Proof of ownership. — Where indictment alleged that animal unlawfully killed was the property of copartners, it was necessary to prove the ownership as laid out in the indictment beyond a reasonable doubt. Territory v. Sais, 1909-NMSC-021, 15 N.M. 171, 103 P. 980.
When brand required as evidence. — Only when the evidence of ownership of animals depended upon a brand was it necessary to introduce a certified copy of the recorded brand in evidence. State v. Meeks, 1919-NMSC-015, 25 N.M. 231, 180 P. 295.
Brand not conclusive. — In prosecution for larceny of a steer, the brand was but prima facie evidence of ownership, and did not prevent prosecution from introducing other evidence of true ownership of animal at time of offense. Chavez v. Territory, 1892-NMSC-014, 6 N.M. 455, 30 P. 903.
Brand not conclusive proof of ownership. — Proof that calf bore defendant's brand in prosecution for stealing and branding the animal did not constitute prima facie evidence that defendants owned the animal, under statute providing that registration in brand book under seal of the cattle sanitary board (now New Mexico livestock board) constituted prima facie proof that person owning the recorded brand was owner of animal branded with such brand. State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966), cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).
Disposal of meat as part of res gestae. — In prosecution for larceny of cattle, evidence as to hogs eating beef at ranch of a defendant was properly admitted as part of res gestae. Territory v. Leslie, 1910-NMSC-002, 15 N.M. 240, 106 P. 378.
Prima facie case. — In prosecution for larceny of cattle, proof of ownership in alleged owner, that the cattle were stolen, that shortly thereafter they were found near the ranch of defendant, bearing his brand, freshly put on, and that he then claimed to own them, was sufficient prima facie proof of an unlawful taking and asportation, and made a prima facie case of larceny, although other cattle of the owner grazed in the same locality where the stolen cattle were found. State v. Liston, 1921-NMSC-104, 27 N.M. 500, 202 P. 696.
In prosecution for larceny of mule, testimony tending to establish identity of mule, ownership by named person as administrator, and possession of mule by defendant was enough to make out a prima facie case of guilt. Territory v. Valles, 1909-NMSC-026, 15 N.M. 228, 103 P. 984.
Offense established. — Evidence of discovery of two calves belonging to others in weaning pen of ranch on which the defendant was foreman, along with other circumstances, afforded adequate support for larceny conviction. State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915.
Conviction justified. — Possession of hide, ears and hoofs of heifer stolen from ranch, and their concealment, together with other circumstances, justified conviction for the theft. State v. Lott, 1936-NMSC-024, 40 N.M. 147, 56 P.2d 1029.
C. VALUE.
Testimony of owner admissible. — An owner's testimony regarding the value of an item stolen is admissible and sufficient to withstand a motion for a directed verdict based on lack of evidence of value. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.
Store owner's calculations. — Testimony of store owner in the form of direct evidence of items taken and their value, based upon his own knowledge and a calculation of the value of the items stolen by determining how many items were in the bins before the theft and how many were left, was substantial evidence as to the value of the goods stolen. State v. Landlee, 1973-NMCA-143, 85 N.M. 726, 516 P.2d 697.
Cost of television set. — Evidence that stolen television set was purchased new in March or April prior to the December it was stolen, that the purchase price was $750 and that it was "working all right" before it was stolen, was substantial evidence of value, and further, as defendant elicited this information on cross-examination, he was not in a position to complain about it. State v. Phillips, 1971-NMCA-114, 83 N.M. 5, 487 P.2d 915.
Value of checks. — Defendant was not entitled to an instruction on fourth degree larceny as a lesser included offense of third degree larceny on the grounds that the $3,200 in checks he stole were neither endorsed nor stamped and therefore worthless. The value of a check, in the absence of proof to show a lesser value, is measured by what the owner of the check could expect to receive for the check at the time of the theft, i.e. the check's face value. Gallegos v. State, 1992-NMSC-014, 113 N.M. 339, 825 P.2d 1249.
Market value. — Testimony of expert witnesses that a fair market value of stolen scrap metal was in excess of $100 constituted substantial evidence to support conviction of defendants for larceny of property worth over $100. State v. Hunt, 1972-NMCA-055, 83 N.M. 753, 497 P.2d 755, cert. denied, 83 N.M. 740, 497 P.2d 742.
Cost or replacement value distinguished. — In prosecution for larceny of a plow, where jury was instructed to determine market value thereof, jury was not warranted in considering its cost or replacement value. State v. Gallegos, 1957-NMSC-052, 63 N.M. 57, 312 P.2d 1067.
Evidence sufficient. — Testimony that part of the item stolen, if it was considered as scrap, was worth $30, that its replacement cost was $110 and that its market value was $170 to $180 was sufficient for a conviction under this statute for larceny of an item in excess of $100 but less than $2500. State v. Landlee, 1973-NMCA-112, 85 N.M. 449, 513 P.2d 186.
D. SUFFICIENCY.
Identification adequate. — Where victim and witness of robbery perpetrated by two masked men described, on the night of the robbery, the robber and the clothes he was wearing, and at trial identified clothes found in defendant's apartment and defendant himself on basis of his posture, size and stoop, there was sufficient evidence to establish that defendant was one of the men involved in the robbery. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120; see also State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.
Exclusion of every reasonable hypothesis save guilt. — Circumstantial evidence of defendant's aiding or abetting larceny was substantial and did not fail to exclude every reasonable hypothesis other than defendant's guilt, where he changed positions in car containing stolen property and helped reload a television set which fell off the roof of the vehicle, which actions excluded the defense hypothesis that defendant was asleep and knew nothing about the larceny. State v. Phillips, 1971-NMCA-114, 83 N.M. 5, 487 P.2d 915.
In prosecution for larceny of signal wire, tracks from car belonging to codefendant and along line of cut wire, which were shown to match those made by defendant's boots, along with unexplained flight from the scene and removal of some cut wire about 100 feet in the direction of the car excluded every reasonable hypothesis other than guilt. State v. Hardison, 1970-NMCA-043, 81 N.M. 430, 467 P.2d 1002.
"Exclusive" possession. — If the unexplained possession of stolen property found in defendant's apartment was within his "exclusive" possession, that circumstance coupled with other culpatory and incriminating circumstances is sufficient to sustain conviction of larceny. State v. Flores, 1966-NMSC-059, 76 N.M. 134, 412 P.2d 560.
The "exclusive" possession which creates an inference of guilt does not mean that the possession must be separate from all others provided there is other evidence to connect the defendant with the offense. State v. Flores, 1966-NMSC-059, 76 N.M. 134, 412 P.2d 560.
Proof of ownership. — In prosecuting larceny, the state need not prove ownership in a particular person; proof that the property belonged to someone other than the defendant is sufficient. State v. Brown, 1992-NMCA-028, 113 N.M. 631, 830 P.2d 183, cert. denied, 113 N.M. 636, 830 P.2d 553.
Sale of property. — While something more than possession alone must be shown to establish corpus delicti of larceny, where ring owned by woman was relinquished by her to jailer when she was confined in jail in which defendant was a trustee and defendant had the ring in his possession afterwards and sold it to another, the corpus delicti of larceny was established by circumstantial evidence. State v. Buchanan, 1966-NMSC-045, 76 N.M. 141, 412 P.2d 565.
Evidence that defendant employee took property belonging to corporate owner from the business where it had been repaired, sold the property to a third person and retained the proceeds of the sale, and that defendant had no authority either to obtain possession of the property or to sell it, was evidence of an unlawful taking with the requisite intent. State v. Robertson, 1977-NMCA-044, 90 N.M. 382, 563 P.2d 1175, cert. denied, 90 N.M. 637, 567 P.2d 486.
Taking money from lounge constituted larceny even where the person defendant took the money from was employed at the lounge, had custody of the money, and consented to the taking of the money, since the money belonged to the owner, not the employee and even if the employee had turned the money over to the defendant willingly, she had no authority to do so. State v. Rhea, 1974-NMCA-030, 86 N.M. 291, 523 P.2d 26, cert. denied, 86 N.M. 281, 523 P.2d 16.
Sufficient evidence to support conviction, despite failure to preserve fingerprints or trace ownership of weapon. State v. Peterson, 1985-NMCA-109, 103 N.M. 638, 711 P.2d 915, cert. denied, 475 U.S. 1052, 106 S. Ct. 1279, 89 L. Ed. 2d 586 (1986).
Sufficient evidence to support conviction for larceny over $20,000. — Where defendant was convicted of larceny over $20,000 and burglary in connection with money stolen from a home improvement store in Farmington, New Mexico, where defendant formerly worked as a department manager, and where, at trial, the state presented video surveillance of the incident that showed an individual wearing "all black" using a key to enter the store through the front doors, disable the alarm system, enter the office, unlock a code-protected safe, take cash from the safe, and leave the store in a little over two minutes, and where defendant claimed that there was insufficient evidence to support his larceny conviction because witnesses could not agree on the exact amount that had been taken and that the amount taken was not established by documentary evidence, there was sufficient evidence to support defendant's conviction for larceny over $20,000 where the state presented testimony from a security officer and the investigating officer regarding the amount that was stolen. Although the two witnesses did not agree on the exact amount that had been taken, both witnesses testified that over $20,000 had been stolen from the home improvement store. State v. Stalter, 2023-NMCA-054, cert. denied.
Sufficient evidence to support retrial for larceny. — When reviewing whether sufficient evidence exists to support retrial, an appellate court includes in its review any erroneously admitted evidence, and if all the evidence, including the wrongfully admitted evidence, is sufficient, then retrial following appeal is not barred. State v. Winters, 2015-NMCA-050, cert. denied, 2015-NMCERT-004.
Following reversal of defendant's conviction for larceny over $2,500, the court of appeals held that the evidence that defendant's truck was found at the scene with the stolen property in the bed of the truck, combined with the erroneously admitted arresting officer's opinion that shoe prints found at the scene matched shoe prints found at defendant's residence, was sufficient to permit the jury to reasonably infer that defendant was at the scene and committed the theft; defendant is subject to retrial on remand. State v. Winters, 2015-NMCA-050, cert. denied, 2015-NMCERT-004.
Evidence insufficient. — Evidence that smooth soled tracks were found between area where wire was being larcenously cut and car belonging to one defendant, and that woman within the car was wearing smooth soled moccasins, where no attempt to match moccasins to tracks was made, was insufficient to exclude every reasonable hypothesis other than her guilt. State v. Hardison, 1970-NMCA-043, 81 N.M. 430, 467 P.2d 1002.
Where proof relied upon to establish defendant's guilt of breaking and entering and larceny was purely circumstantial and not incompatible with innocence on any rational theory, or incapable of explanation on any reasonable hypothesis, it was error for the court not to have directed a verdict of acquittal at the close of the state's case. State v. Campos, 1968-NMSC-177, 79 N.M. 611, 447 P.2d 20.
Insufficient evidence that value of stolen property over $2,500. State v. Seward, 1986-NMCA-062, 104 N.M. 548, 724 P.2d 756, cert. denied, 104 N.M. 522, 724 P.2d 231.
Insufficient evidence of intent to permanently deprive owner of stolen items. — Where defendant was convicted of larceny based on DNA evidence found in a burglarized house, there was insufficient evidence to permit a rational jury to find the essential facts to establish each element of the crime of larceny beyond a reasonable doubt, because although there was evidence that defendant had entered the property without authorization, the state, without presenting any evidence linking defendant to the stolen items, failed to establish, either directly or by circumstantial evidence, that defendant took or carried away the stolen items with the specific intent to permanently deprive the owner of those items. State v. Ledbetter, 2020-NMCA-046.
VI. INSTRUCTIONS.
Intent. — Where on appeal it was contended an error occurred for the district court to give a general intent instruction without instructing the jury that it did not apply to a specific intent crime, because the instruction substantially followed the applicable law, there was no fundamental error. State v. Gee, 2004-NMCA-042, 135 N.M. 408, 89 P.3d 80, cert. denied, 2004-NMCERT-003, 135 N.M. 321, 88 P.3d 261.
Error in time period charged harmless. — Where crime of grand larceny was charged as having been committed on February 15, 1953, the information charging theft of a washing machine over the value of $20.00 was filed January 4, 1954, and meanwhile the statute defining the crime was amended on June 12, 1953, by substituting $50.00 in lieu of $20.00, fact that the court's instructions permitted jury to find that the offense had occurred on February 18, 1953, or at any time within the three years next preceding the date the information was filed was harmless, as the evidence conclusively showed that the offense had occurred prior to the effective date of the amendment, and moreover, the error was waived. State v. Johnson, 1955-NMSC-070, 60 N.M. 57, 287 P.2d 247.
Incorrect identification of victim not fundamental error. — Instructions to which defendant in prosecution for burglary and larceny made no objection, incorrectly setting forth the name and address of the victim, did not constitute fundamental error. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, and cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973).
Charge on circumstantial evidence proper. — Instruction on circumstantial evidence concerning the stealing and unlawful branding of a bull calf was not erroneous because of inclusion of statement "that before you would be authorized to find a verdict of guilty against the defendant where the evidence is circumstantial, the facts and circumstances shown in the evidence must be incompatible upon any reasonable hypothesis with the innocence of the defendant and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant." State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).
Cumulative instruction. — The court was not required to give instruction on circumstantial evidence which was cumulative. State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).
Instruction on larceny by employee incorrect. — Defendant's requested instruction which told the jury that if the defendant was an employee of the corporate owner and as such had the right to have the possession of the equipment in question, then even though he sold said equipment without authority, he was not guilty of larceny, was an incorrect statement of the law because it failed to recognize that defendant's physical control of the equipment was no more than custody on behalf of an employer who retained possession. State v. Robertson, 1977-NMCA-044, 90 N.M. 382, 563 P.2d 1175, cert. denied, 90 N.M. 637, 567 P.2d 486.
Larceny as included offense. — Because robbery is an aggravated larceny, so that larceny is necessarily included within the offense of robbery, defendant had the right to have instructions on larceny submitted to the jury, since there was evidence from several defense witnesses which tended to establish that offense. State v. Wingate, 1975-NMCA-035, 87 N.M. 397, 534 P.2d 776.
Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
For annual survey of New Mexico Criminal Law, see 20 N.M.L. Rev. 265 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 50 Am. Jur. 2d Larceny § 1 et seq.
Should ownership of property be laid in the husband or the wife in an indictment for larceny, 2 A.L.R. 352.
Intent to convert property to one's own use or to the use of third person as element of larceny, 12 A.L.R. 804.
"Asportation" which will support charge of larceny, 19 A.L.R. 724, 144 A.L.R. 1383.
Appropriation of property after obtaining possession by fraud as larceny, 26 A.L.R. 381.
Assisting in transportation or disposal of property known to have been stolen as rendering one guilty of larceny, 29 A.L.R. 1031.
Individual criminal responsibility of officer or employee for larceny, through corporate act, of property of third person, 33 A.L.R. 787.
Larceny or embezzlement by one spouse of other's property, 55 A.L.R. 558.
"Larceny" within fidelity bond, 56 A.L.R. 967.
Sufficiency of verdict on conviction, which fails to state value of property, 79 A.L.R. 1180.
Dog as subject of larceny, 92 A.L.R. 212.
Larceny of gas, 113 A.L.R. 1282.
Distinction between larceny and embezzlement, 146 A.L.R. 532.
Gambling or lottery paraphernalia as subject of larceny, 51 A.L.R.2d 1396.
Relative rights, as between purchaser of chattel from one who previously bought it with stolen money, and victim of the theft, 62 A.L.R.2d 537.
Law as to cats, 73 A.L.R.2d 1032, 8 A.L.R.4th 1287, 55 A.L.R.4th 1080, 68 A.L.R.4th 823.
Carcass: stealing carcass as within statute making it larceny to steal cattle or livestock, 78 A.L.R.2d 1100.
Taking, and pledging or pawning, another's property as larceny, 82 A.L.R.2d 863.
Stolen money or property as subject of larceny, 89 A.L.R.2d 1435.
Entrapment or consent, 10 A.L.R.3d 1121.
Cotenant taking cotenancy property, 17 A.L.R.3d 1394.
Single or separate larceny predicated upon stealing property from different owners at same time, 37 A.L.R.3d 1407.
Rented vehicles: criminal liability in connection with rental of motor vehicles, 38 A.L.R.3d 949.
Purse snatching as robbery or theft, 42 A.L.R.3d 1381.
Price tags: changing of price tags by patron of self-service store as criminal offense, 60 A.L.R.3d 1293.
Gambling: retaking of money lost at gambling as robbery or larceny, 71 A.L.R.3d 1156.
What constitutes larceny "from a person," 74 A.L.R.3d 271.
Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.
Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.
Applicability of best evidence rule to proof of ownership of allegedly stolen personal property in prosecution for theft, 94 A.L.R.3d 824.
Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.
Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.
Bank officer's or employee's misapplication of funds as state criminal offense, 34 A.L.R.4th 547.
Criminal liability for theft of, interference with, or unauthorized use of computer programs, files, or systems, 51 A.L.R.4th 971.
Cat as subject of larceny, 55 A.L.R.4th 1080.
Consideration of sales tax in determining value of stolen property or amount of theft, 63 A.L.R.5th 417.
What constitutes violation of 15 USCS § 714m(c), proscribing larceny or conversion of property owned by or pledged to commodity credit corporation, 109 A.L.R. Fed. 871.
52A C.J.S. Larceny §§ 1 to 29.
