2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 1 - General Provisions
Section 30-1-12 - Definitions.
As used in the Criminal Code:
A. "great bodily harm" means an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body;
B. "deadly weapon" means any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapons with which dangerous wounds can be inflicted;
C. "peace officer" means any public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes;
D. "another" or "other" means any other human being or legal entity, whether incorporated or unincorporated, including the United States, the state of New Mexico or any subdivision thereof;
E. "person" means any human being or legal entity, whether incorporated or unincorporated, including the United States, the state of New Mexico or any subdivision thereof;
F. "anything of value" means any conceivable thing of the slightest value, tangible or intangible, movable or immovable, corporeal or incorporeal, public or private. The term is not necessarily synonymous with the traditional legal term "property";
G. "official proceeding" means a proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or depositions in any proceeding;
H. "lawful custody or confinement" means the holding of any person pursuant to lawful authority, including, without limitation, actual or conseructive [constructive] custody of prisoners temporarily outside a penal institution, reformatory, jail, prison farm or ranch;
I. "public officer" means any elected or appointed officer of the state or any of its political subdivisions, and whether or not he receives remuneration for his services; and
J. "public employee" means any person receiving remuneration for regular services rendered to the state or any of its political subdivisions.
History: 1953 Comp., § 40A-1-13, enacted by Laws 1963, ch. 303, § 1-13.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Furlough as "lawful custody or confinement". — Where, after defendant began serving a sentence for driving under the influence of intoxicating liquor or drugs, the metropolitan court released defendant on furlough and the furlough order imposed limitations on defendant's movement, required defendant to return to custody at the end of the furlough period, and informed defendant that failure to return would result in a charge of escape, Defendant continued to serve the sentence while on furlough because defendant was in "lawful custody or confinement" while on furlough and defendant was entitled to credit for the time defendant was on furlough. State v. Padilla, 2011-NMCA-029, 150 N.M. 344, 258 P.3d 1136.
Great bodily harm: evidence that injury has actually caused death may be used to demonstrate the element of great bodily harm because, consistent with Subsection A of this section, it establishes an injury that creates a high probability of death. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Great bodily harm: death not equated with great bodily harm.— Comparing the voluntary manslaughter statute with the shooting at or from a motor vehicle statute and the statutory definition of great bodily harm in Subsection A of Section 30-1-12 NMSA 1978, it is clear that the legislature does not "equate" death with great bodily harm. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.
Great bodily harm: construction with other laws. — Section 30-3-8A NMSA 1978, construed with the definition of "great bodily harm" in Subsection A, includes a shooting at a dwelling that results in death. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Great bodily harm: protracted impairment. — Section 66-8-101B NMSA 1978, which defines great bodily injury by a motor vehicle as "the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle," is not unconstitutionally vague. The term "protracted impairment" in Section 30-1-12A NMSA 1978 is capable of reasonable application by a jury of common intelligence after consideration of the circumstances involved. State v. Jim, 1988-NMCA-092, 107 N.M. 779, 765 P.2d 195, cert. denied, 107 N.M. 720, 764 P.2d 491.
Great bodily harm: serious disfigurement. — Under this section, the word "disfigurement" has no technical meaning and should be considered in the ordinary sense, as should the word "serious." State v. Ortega, 1966-NMSC-186, 77 N.M. 312, 422 P.2d 353.
Great bodily harm: high probability of death. — Sheriff's description of being choked by defendant was evidence that the choking created a "high probability of death", which is one part of the definition of great bodily harm. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238.
Sufficient evidence of great bodily harm. — Where defendant was convicted of causing great bodily injury by vehicle following a collision in which defendant's vehicle, while traveling on a state road, crossed the center lane and struck a group of motorcyclists, there was sufficient evidence to support a finding of "prolonged impairment" where the victim testified that she experienced severe bruising, road rash, and bruised ribs as a result of the collision, that the bruising and road rash covered her right side, that she was unable to work for approximately a month, that for the first two weeks, she was unable to move because of the extreme pain resulting from her bruised ribs and that she still experiences pain resulting from the bruised ribs. State v. Cordova, 2016-NMCA-019, cert. granted, 2015-NMCERT-008.
Great bodily harm: mayhem. — The legislature adopted the definition in Subsection A of Section 30-1-12 NMSA 1978 in an effort to cover, among others, the crime of mayhem, originally enacted in 1853 to 1854 and compiled as former 40-30-1, 1953 Comp. State v. Ortega, 1966-NMSC-186, 77 N.M. 312, 422 P.2d 353.
Great bodily harm: establishing. — The conditions in Subsection A of Section 30-1-12 NMSA 1978 are not cumulative, and only one need be shown in order to establish "great bodily harm". State v. Bell, 1977-NMSC-013, 90 N.M. 134, 560 P.2d 925.
Great bodily harm does not require that disfigurement be permanent. State v. Bell, 1977-NMSC-013, 90 N.M. 134, 560 P.2d 925.
Great bodily harm: need not be proved solely by medical experts. — Furthermore, the law does not require that "great bodily harm" be proved exclusively by medical testimony. The jury is entitled to rely upon rational inferences deducible from the evidence. State v. Bell, 1977-NMSC-013, 90 N.M. 134, 560 P.2d 925.
Great bodily harm: degree of bodily harm a question of fact. — Where the evidence showed that defendants forcibly tattooed victim with a needle and India ink, which tattoo extended from the back of the victim's neck to the center part of the waist and recited an offensive sentence, it became a question of fact as to whether or not the injuries sustained were sufficiently substantial to come within the statutory definition of "great bodily harm". State v. Ortega, 1966-NMSC-186, 77 N.M. 312, 422 P.2d 353.
Great bodily harm: instruction on personal injury. — In a prosecution for criminal sexual penetration, where the trial court gave the statutory definition of personal injury appearing at Section 30-9-10C (now D) NMSA 1978, and also gave the statutory definition of great bodily harm in Subsection A of this section in the instruction on first degree criminal sexual penetration, the lack of additional definition of personal injury was not error; if defendant desired that personal injury be further defined, he should have submitted a requested instruction to that effect, and since he did not do so, he could not complain of the lack of additional definition of the term. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.
Deadly weapon: knife. — For a knife to be a deadly weapon it must come within the portion of this statute as to any other deadly weapons with which dangerous wounds can be inflicted. State v. Martinez, 1953-NMSC-031, 57 N.M. 174, 256 P.2d 791.
Deadly weapon: butterfly knife. — Where a defendant was charged with carrying a concealed deadly weapon, the prosecution was not required to prove that the knife could actually be used to inflict great bodily harm; the prosecution needed to prove only that a butterfly knife was a switchblade. There was sufficient evidence that the knife carried by defendant was a switchblade as defined in Section 30-7-8 NMSA 1978. State v. Riddall, 1991-NMCA-033, 112 N.M. 78, 811 P.2d 576, cert. denied, 112 N.M. 21, 810 P.2d 1241.
Deadly weapon: wounds establishing deadliness of knife. — Where no one directly testified the knife was one with which dangerous wounds could be inflicted, but the wounds were described by the physician who treated the victim, and they were sufficiently severe to keep him in a hospital under the doctor's care for a week, and in addition, the scars caused by the knife wounds were shown to the jury, in view of the depth and the length of the wounds the jury was fully justified in finding the knife used was a deadly weapon, although the blade used was only about two inches in length. State v. Martinez, 1953-NMSC-031, 57 N.M. 174, 256 P.2d 791.
Deadly weapon: other deadly weapons. — Under an aggravated stalking charge, when the object or instrument in question is an unlisted one that falls within the catchall language of Section 30-1-12B NMSA 1978, the jury must be instructed: (1) that the defendant must have possessed the object or instrument with the intent to use it as a weapon, and (2) the object or instrument is one that, if so used, could inflict dangerous wounds. State v. Anderson, 2001-NMCA-027, 130 N.M. 295, 24 P.3d 327.
Deadly weapon: tire iron. — Defendant's use of a tire iron to break into a house fell under the definition that defendant was "armed" with a weapon under this section. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, rev'd on other grounds, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.
Deadly weapon: bullets not deadly weapon. — Defendant's mere possession of bullets did not constitute possession of a deadly weapon under Subsection B of this section. State v. Galaz, 2003-NMCA-076, 133 N.M. 794, 70 P.3d 784.
Deadly weapon: jury to determine character of weapon. — The question of whether a weapon is capable of producing death or great bodily harm or is a weapon with which dangerous wounds can be inflicted is ordinarily for the jury who are to determine the question by considering the character of the instrument and the manner of its use, either by a description thereof (even though the weapon is not in evidence), or by viewing the weapon admitted into evidence (even though it is not described). State v. Gonzales, 1973-NMCA-153, 85 N.M. 780, 517 P.2d 1306.
Deadly weapon: factual considerations. — Factors to be considered in determining whether an instrument is a deadly weapon include the nature of the instrument, that is, its size, shape, condition and possible alteration; the circumstances under which it is carried, that is, the time, place and situation in which defendant is found with the instrument; defendant's actions with regard to the instrument; and the place of concealment. State v. Blea, 1983-NMCA-089, 100 N.M. 237, 668 P.2d 1114.
Deadly weapon: screwdriver. — Although the screwdriver was not introduced into evidence, the jury could determine the factual question of whether a deadly weapon was used by a description of the weapon and its use. State v. Candelaria, 1981-NMCA-122, 97 N.M. 64, 636 P.2d 883.
Deadly weapon: brick wall. — Determination of whether a brick wall is a deadly weapon is a question of fact for the jury or fact finder to determine, given the evidence presented as to the manner and use of the wall. State v. Montano, 1999-NMCA-023, 126 N.M. 609, 973 P.2d 861, cert. denied, 126 N.M. 533, 972 P.2d 352, and cert. denied, 127 N.M. 390, 981 P.2d 1208 .
Deadly weapon: baseball bat. — In a prosecution for aggravated battery with a deadly weapon, the question of whether a baseball bat was a deadly weapon should have been left to the jury; however, when such a determination is made by the trial judge, the error is not fundamental and must be preserved for appeal. State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.
Deadly weapon: jury to determine existence of weapon. — Whether defendant actually had gun, defined in this section as a deadly weapon, whether loaded or unloaded, in her hand as testified to by robbery victim was for the jury to resolve. State v. Encee, 1968-NMCA-012, 79 N.M. 23, 439 P.2d 240.
Deadly weapon: insufficient evidence to show deadly character of weapon. — Evidence that defendant raised an undescribed tire tool over attendant's head "like a threat," without more, was insufficient for a determination that the tire tool was a deadly weapon capable of producing death or great bodily harm or a weapon with which dangerous wounds could be inflicted. State v. Gonzales, 1973-NMCA-153, 85 N.M. 780, 517 P.2d 1306.
Deadly weapon: pocketknife. — An ordinary pocketknife is not a per se deadly weapon, without regard to its actual or intended use. State v. Nick R., 2009-NMSC-050, 147 N.M. 182, 218 P.3d 868.
Deadly weapon: BB gun. — The defendant's use of a BB gun during a robbery provided a sufficient factual basis to permit a jury to determine that a deadly weapon had been used because the jury could have concluded that the manner and character of use of the weapon satisfied the definition of a deadly weapon. State v. Fernandez, 2007-NMCA-091, 142 N.M. 231, 164 P.3d 112.
Deadly weapon: the human mouth is a deadly weapon if the mouth is used in a manner that could cause death or great bodily harm. State v. Neatherlin, 2007-NMCA-035, 141 N.M. 328, 154 P.3d 703.
Peace officer: Subsection C inapplicable to capital felony sentencing. — The definition of "peace officer" in Subsection C of this section is not directly applicable to Section 31-20A-5 NMSA 1978 because that definition applies only to the Criminal Code. State v. Young, 2004-NMSC-015, 135 N.M. 458, 90 P.3d 477.
Peace officer: legislature did not exclude jailers from definition of peace officers: a jailer is an officer in the public domain, charged with the duty to maintain public order. State v. Rhea, 1980-NMSC-033, 94 N.M. 168, 608 P.2d 144.
Peace officer: juvenile correctional officers were not peace officers within the meaning of this section, where, although they may have had the power to maintain order and make arrests in their particular domain, they were not vested by law with a duty to do so. State v. Tabaha, 1986-NMCA-009, 103 N.M. 789, 714 P.2d 1010.
Public officer: officers of state game commission are state officers. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677, overruled on other grounds by New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Peace officer: CSO. — Community service officers are peace officers. State v. Ogden, 1994-NMSC-029, 118 N.M. 234, 880 P.2d 845.
Person: MFA. — The mortgage finance authority, a state agency established to raise funds through the issuance of tax-exempt bonds is a person within the meaning of the victim restitution statute. State v. Griffin, 1983-NMCA-072, 100 N.M. 75, 665 P.2d 1166
Person: corporate defendant. — Although a corporate defendant may be charged and convicted of the offense of racketeering, it was error to submit the racketeering charge against the corporate defendant to the jury because the corporate defendant was not specifically charged with commission of such crime in the indictment. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592; cert. denied, 109 N.M. 232, 784 P.2d 419.
Lawful custody: electronic monitor. — The use of a conventional jail to hold the person is not necessary for there to be a "lawful custody or confinement" under the plain language of the statute. A "lawful custody or confinement" simply consists of the holding of any person pursuant to lawful authority", and the actual means used to accomplish holding the person is without limitation. A mandatory sentence or imprisonment may be served under house arrest by an electronic monitor. State v. Woods, 2010-NMCA-017, 148 N.M. 89, 230 P.3d 836, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Special deputy. — Absent a limitation of authority a special deputy is a peace officer and is cloaked with all of the powers and duties of such. 1965-66 Op. Att'y Gen. No. 66-92.
School security force. — Use of the term "peace officer" in describing security officers who were regular employees of the school system organized into a security and patrol force to guard school buildings and property would be improper. 1969-70 Op. Att'y Gen. No. 70-87 (unofficial opinion issued to superintendent of Albuquerque public schools).
Law reviews. — For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).
For note and comment, "Criminal Law — Home Alone: Why House Arrest Doesn't Qualify for Presentence Confinement Credit in New Mexico — State v. Fellhauer," see 28 N.M.L. Rev. 519 (1998).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 A.L.R.4th 1213.
Corporation's criminal liability for homicide, 45 A.L.R.4th 1021.