State v. Ortega

OPINION

SPIESS, Chief Judge.

Defendant was charged and convicted of breaking and entering in violation of Sec. 40A-16-3, N.M.S.A.1953, the material part of which reads: “Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.”

The defendant has appealed from the sentence imposed and contends (1) that there is an absence of substantial evidence to support the verdict and (2) that submitting the case to the jury constituted fundamental error.

Specifically, defendant…