Any person who willfully conceals merchandise on his person or on the person of another or among his belongings or the belongings of another or on or outside the premises of the store shall be prima facie presumed to have concealed the merchandise with the intention of converting it without paying for it. If any merchandise is found concealed upon any person or among his belongings it shall be prima facie evidence of willful concealment.
History: 1953 Comp., § 40A-16-21, enacted by Laws 1965, ch. 5, § 3.
Cross references. — For evidentiary rule regarding presumptions in criminal cases, see Rule 11-302 NMRA.
Section subject to rule of evidence. — There being no statute providing otherwise, the provisions of this section are subject to Rule 303, N.M.R. Evid. (now Rule 11-302 NMRA). State v. Matamoros, 1976-NMCA-028, 89 N.M. 125, 547 P.2d 1167.
Instructions improper. — Instructions that one who willfully conceals merchandise on his person shall be "prima facie presumed" to have concealed it with intent of converting it without paying for it, and that concealment on one's person or his belongings is "prima facie evidence" of willful concealment, violated Rule 303(c), N.M.R. Evid. (now Rule 302C NMRA). State v. Matamoros, 1976-NMCA-028, 89 N.M. 125, 547 P.2d 1167.
Error not preserved. — Although instructions embodying the language of this section violated Rule 303(c), N.M.R. Evid. (now Rule 302C NMRA), requiring instructions on presumptions to be couched in permissive and not mandatory terms, nevertheless since defendant only objected with a general claim that the instructions created an unconstitutional presumption, and did not alert the trial court to the issue under the evidentiary rule, the error would not be considered further. State v. Matamoros, 1976-NMCA-028, 89 N.M. 125, 547 P.2d 1167.
Willful concealment established. — Showing that defendant entered store which had just opened for the day with a blanket wrapped around him, went to the rack where the expensive rugs were kept and at the door was found to have a rug under his blanket, hidden and folded up, constituted sufficient evidence for a rational juror to find each of the inferred facts in this section beyond a reasonable doubt, and showed a willful concealment. State v. Matamoros, 1976-NMCA-028, 89 N.M. 125, 547 P.2d 1167.
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