Miller v. Cox

New Mexico Supreme Court

Miller v. Cox

356 P.2d 231, 67 N.M. 414

CourtNew Mexico Supreme Court

DecidedOctober 4, 1960

DocketNo. 6797

StatusPublished

Cited by2 cases

This text of 356 P.2d 231 (Miller v. Cox) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Cox, 356 P.2d 231, 67 N.M. 414 (N.M. 1960).

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Opinion

PER CURIAM.

The above matter came on for hearing on Petition and supplements for a Writ of Habeas Corpus, Chief Justice COMPTON, Mr. Justice CARMODY and Mr. Justice CHAVEZ sitting. Petitioner had been charged in an information on two counts with the crime of breaking and entering (N.M.S.A., 1953, 40-9-6), and had entered pleas of guilty in open court being represented by counsel. The judgment found that he was guilty of “burglary” on both counts. He was sentenced to imprisonment in the State Penitentiary on each count for a term of one to three years, that prescribed by Sec. 40-9-6, to run consecutively. Petitioner urged that the sentences were void since he pleaded guilty to breaking and entering and the judgment found him guilty of “burglary”. The penalty prescribed for burglary (N.M. S.A., 1953, 40-9-1) is three to fifteen years imprisonment.

The original statutes are found in Secs. 9, 10, 11 and 12 of Chapter IV, Laws of the Territory of New Mexico, 1853-4, and are extensions of the common-law definition of the crime of burglary.

We hold that under the New Mexico statutes the unlawful entry of a building in the nighttime constitutes “burglary”, the punishment being dependant upon the degree of the offense. State v. Mares, 61 N.M. 46, 294 P.2d 284; State v. Salazar, 42 N.M. 308, 77 P.2d 633.

The Writ is discharged and the petitioner is remanded to the custody of the Warden of the State Penitentiary.

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PER CURIAM.

The above matter came on for hearing on Petition and supplements for a Writ of Habeas Corpus, Chief Justice COMPTON, Mr. Justice CARMODY and Mr. Justice CHAVEZ sitting. Petitioner had been charged in an information on two counts with the crime of breaking and entering (N.M.S.A., 1953, 40-9-6), and had entered pleas of guilty in open court being represented by counsel. The judgment found that he was guilty of “burglary” on both counts. He was sentenced to imprisonment in the State Penitentiary on each count for a term of one to three years, that prescribed by Sec. 40-9-6, to run consecutively. Petitioner urged that the sentences were void since he pleaded guilty to breaking and entering and the judgment found him guilty of “burglary”. The penalty prescribed for burglary (N.M. S.A., 1953, 40-9-1) is three to fifteen years imprisonment.

The original statutes are found in Secs. 9, 10, 11 and 12 of Chapter IV, Laws of the Territory of New Mexico, 1853-4, and are extensions of the common-law definition of the crime of burglary.

We hold that under the New Mexico statutes the unlawful entry of a building in the nighttime constitutes “burglary”, the punishment being dependant upon the degree of the offense. State v. Mares, 61 N.M. 46, 294 P.2d 284; State v. Salazar, 42 N.M. 308, 77 P.2d 633.

The Writ is discharged and the petitioner is remanded to the custody of the Warden of the State Penitentiary.

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Bluebook (online)

356 P.2d 231, 67 N.M. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-cox-nm-1960.

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