{
  "id": 2837120,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gerald S. BOLEN, Defendant-Appellant",
  "name_abbreviation": "State v. Bolen",
  "decision_date": "1976-01-13",
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  "last_updated": "2023-07-14T21:34:46.516747+00:00",
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  "casebody": {
    "judges": [
      "HENDLEY and SUTIN, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Gerald S. BOLEN, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of burglary and two larcenies. He was sentenced to three prison terms, to be served consecutively. His appeal raises three issues: (1) the single larceny doctrine; (2) double jeopardy; and (3) consecutive sentencing.\nA bicycle shop and a ski shop, separately owned, were located in one room divided by low walls. Each shop had a separate cash register. Defendant stole money from each cash register.\nSingle Larceny Doctrine\n2 Anderson, Wharton\u2019s Criminal Law and Procedure, \u00a7 451 (1957) states: \u201cThe stealing of property from different owners at the same time and at the same place constitutes but one larceny.\u201d The annotation at 37 A.L.R.3d 1407 (1971), page 1409 states that the overwhelming majority of jurisdictions follow this doctrine. The issue in this case has not been specifically decided in New Mexico although several decisions have considered aspects of the doctrine. See State v. Allen, 59 N.M. 139, 280 P.2d 298 (1955); State v. Romero, 33 N.M. 314, 267 P. 66 (1928); State v. Klasner, 19 N.M. 474, 145 P. 679 (1914).\nThe doctrine has been rationalized on the ground that the \u201ctaking is one continuous act or transaction\u201d and on the ground of double jeopardy. Annot. 37 A.L.R.2d, supra, pages 1409-1410. Such rationalizations may not be valid in New Mexico because the same transaction test has been repudiated and because of the approved tests for determining double jeopardy in New Mexico. State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975).\nHowever, we need not determine whether the single larceny doctrine is valid. We need not do so because the doctrine is not applicable to the facts of this case. The doctrine is limited to cases wherein the taking occurred at one time and one place. Annot. 37 A.L.R.3d, supra, page 1414. Wharton\u2019s Criminal Law and Procedure, supra, states:\n\u201cIf different articles are taken from different owners at different times, the defendant is guilty of separate larcenies. Accordingly, if on the same expedition there are several distinct larcenous takings, as taking the goods of one person at one place, and afterward taking the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings, and this is true although the thefts may all have been committed in rapid succession and in pursuance of a formed design to steal.\u201d\nAlthough committed at the same place and in rapid succession, the robbery of three stagecoach passengers was three distinct offenses. In Re Allison, 13 Colo. 525, 22 P. 820 (1889). Where articles are stolen from different rooms of the same house from different owners, each theft is a separate offense. People v. Sichofsky, 58 Cal.App. 257, 208 P. 340 (1922). The taking of cattle belonging to different owners at the same time and from the same place is one larceny; the taking of cattle belonging to different owners from different pastures is more than one larceny. Hall v. State, 66 So.2d 863 (Fla.1953). Property taken from five different owners from different places in the same wagon-yard was five larcenies because each taking was a distinct offense. State v. Mag-gard, 160 Mo. 469, 61 S.W. 184 (1901).\nThe facts show a taking from each cash register. The registers were in different locations; the money taken was the property of separate owners. The factual predicate for the doctrine is lacking because taking the money from two cash registers did not occur at the same time and place.\nDouble Jeopardy\nRelying on the same evidence test reaffirmed in State v. Tanton, supra, defendant asserts that conviction of two larcenies amounts to double jeopardy. The State proved thefts from separate cash registers. Proof of theft of money from the bicycle shop would not have proved theft of money from the ski shop. The evidence was not the same.\nConsecutive Sentencing\nDefendant claims his consecutive sentences violate the prohibition against double jeopardy and the prohibition against cruel and unusual punishment. These contentions were not raised in the trial court; they will not be considered. State v. Brakeman, 88 N.M. 153, 538 P.2d 795 (Ct.App.1975).\nOral argument is unnecessary. The judgment and sentence are affirmed.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, John Zavitz, Asst. Appellate Defender, Santa Fe, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "545 P.2d 1025\nSTATE of New Mexico, Plaintiff-Appellee, v. Gerald S. BOLEN, Defendant-Appellant.\nNo. 2162.\nCourt of Appeals of New Mexico.\nJan. 13, 1976.\nCertiorari Denied Feb. 11, 1976.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, John Zavitz, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0647-01",
  "first_page_order": 677,
  "last_page_order": 678
}