2019 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 1 - Issuance of Process and Warrants
Section 31-1-4 - Criminal actions; docketing action; service; return.

A. Upon filing of the complaint of a law enforcement officer, the court shall docket the action. Upon the filing of the complaint of any other person, the court shall collect the docket fee from the person before docketing the action.

B. Upon the docketing of any criminal action, the court may issue a summons directing the defendant to appear before the court at a time stated in the summons.

C. When a warrant is issued in a criminal action, it shall be directed to a law enforcement officer, and the defendant named in the warrant shall, upon arrest, be brought by the officer before the court without unnecessary delay.

D. It shall be the duty of the clerk of the district court to issue process in criminal cases filed in the district court. It shall be the duty of the clerk of the magistrate court or the magistrate, if there is no clerk, to issue process in criminal cases filed in the magistrate court. It shall be the duty of the law enforcement officer to whom process is directed to execute process and return the same to the clerk of the court from which process is issued or, if there is no clerk of the court, to the judge thereof.

E. Except for criminal actions filed in municipal court, all police officers authorized to serve process issued in any criminal action have jurisdiction to serve such process in any county of this state.

History: 1953 Comp., § 41-1-4, enacted by Laws 1972, ch. 71, § 7; 1975, ch. 242, § 11.

Repeals and reenactments. — Laws 1972, ch. 71, § 7, repealed 41-1-4, 1953 Comp., relating to officers empowered to issue warrants, and enacted a new 31-1-4 NMSA 1978.

Cross references. — For method of arrest for gambling, see 30-19-12 NMSA 1978.

For arrest under forest-fire laws, see 30-32-3 NMSA 1978.

For arrests for traffic offenses, see 66-8-122 NMSA 1978 et seq.

For issuance of summons or warrant, see Rule 5-208 NMRA.

Compiler's notes. — Some of the following annotations are from cases and opinions which were decided under former law.

Constitutional provision and statute in pari materia. — Constitutional provisions relative to arrests, searches and seizures (art. II, § 10) and former statute were to be considered in pari materia, their general purpose being preservation of personal security and liberty of individual, by forbidding issuance of a warrant except upon probable cause shown under oath, and by preventing as far as possible the institution of baseless and unfounded prosecution. State v. Trujillo, 1928-NMSC-016, 33 N.M. 370, 266 P. 922.

Complaint subscribed by sheriff was insufficient to invoke jurisdiction of district court where crimes charged therein, burglary and grand larceny, purported in each case to be a felony. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

Validity of complaint insignificant. — Where appellant was arrested by drugstore owner who apprehended appellant outside his store in early morning, then appellant was properly arrested without warrant on probable cause, and appellant was properly before the justice of the peace (now magistrate court) regardless of validity of final complaint of the store owner. State v. Hudson, 1967-NMSC-164, 78 N.M. 228, 430 P.2d 386.

Purpose of warrant is to acquire jurisdiction over the person of the accused - to bring him before the court. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74.

Section read with common-law rule. — This section (former 41-3-1, 1953 Comp.) was to be read in connection with the common-law rule that an officer may arrest, without a warrant, a person whom he has probable cause to believe guilty of a felony. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74.

Definition of warrant. — A warrant is a writ or precept issued by a magistrate, justice or other competent authority, addressed to a sheriff, constable or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate court, to answer, or be examined, touching some offense which he is charged with having committed. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74.

Warrant valid. — A warrant based upon a detective's information and belief affidavit and approved in writing by the assistant district attorney was valid. State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478.

When no warrant required. — Under former 41-3-8, 1953 Comp., the issuance of a warrant was not necessary to confer jurisdiction over the person of an accused who had already been arrested with probable cause and who was under confinement. State v. Barreras, 1958-NMSC-085, 64 N.M. 300, 328 P.2d 74.

Arrest of both defendant and party named in warrant upheld. — Arrest was proper where defendant was in company of party for whom arresting officer had warrant and officer had been advised that party for whom he had warrant was accompanied by man answering defendant's description when alleged acts were committed. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258.

"Process" defined. — The term "process," as used in Subsections D and E, is meant to be generic, including, summons, writs, warrants, and orders. State v. Gutierrez, 1985-NMCA-034, 102 N.M. 726, 699 P.2d 1078, cert. denied, 102 N.M. 734, 700 P.2d 197.

Warrants in criminal cases may issue on Sunday. — Setting and accepting appearance bonds are ministerial acts that may be performed on Sunday in felony cases as well as misdemeanor cases. 1961 Op. Att'y Gen. No. 61-56.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Arrest § 10 et seq.; 21 Am. Jur. 2d Criminal Law §§ 408, 409.

Constitutionality of statute or ordinance authorizing arrest, 1 A.L.R. 585.

Advice or order from superior officers as defense to a police officer for making an unlawful arrest, 3 A.L.R. 647.

Liability for loss of property left unprotected when owner was wrongfully arrested, 5 A.L.R. 362.

Effect of defects or informalities as to appearance or return day in summons or notice of commencement of action, 6 A.L.R. 841, 97 A.L.R. 746.

Time at which an arrest is made as affecting its legality or liability for making it, 9 A.L.R. 1350.

Who may take affidavit as basis for warrant of arrest, 16 A.L.R. 923.

Necessity of showing warrant upon making arrest under warrant, 40 A.L.R. 62.

Liability for false imprisonment, of officer executing warrant for arrest as affected by its being returnable to wrong court, 40 A.L.R. 290.

Power of private person to whom warrant of arrest is directed to deputize another to make the arrest or to delegate his power in that respect, 47 A.L.R. 1089.

Territorial extent of power to arrest under a warrant, 61 A.L.R. 377.

Unlawfulness of arrest as affecting jurisdiction or power of court to proceed in criminal case, 96 A.L.R. 982.

Civil liability of officer making arrest under warrant as affected by his failure to exhibit warrant, or to state fact of, or substance of, warrant, 100 A.L.R. 188.

Prohibition as remedy in case of defective indictment, information or complaint, 102 A.L.R. 298.

Error in naming the offense covered by allegations of specific facts in complaint, indictment or information, 121 A.L.R. 1088.

Summons as amendable to cure error or omission in naming or describing court or judge, or place of court's convening, 154 A.L.R. 1019.

Immunity of nonresident defendant in criminal case from service of process, 20 A.L.R.2d 163.

Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person, 37 A.L.R.2d 928.

Private citizen's right to institute mandamus to compel a magistrate or other appropriate official to issue a warrant, or the like, for an arrest, 49 A.L.R.2d 1285.

Privilege of party, witness or attorney, while going to, attending or returning from court as extending to privilege from arrest for crime, 74 A.L.R.2d 592.

Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial, 85 A.L.R.2d 980.

Mistake or error in middle initial or middle name of party as vitiating or invalidating civil process, summons, or the like, 6 A.L.R.3d 1179.

Criminal liability for obstructing process as affected by invalidity or irregularity of the process, 10 A.L.R.3d 1146.

Civil liability of one making false or fraudulent return of process, 31 A.L.R.3d 1393.

Modern status of rules as to right to forcefully resist illegal arrest, 44 A.L.R.3d 1078.

Right to resist excessive force used in accomplishing lawful arrest, 77 A.L.R.3d 281.

Individual's right to present complaint or evidence of criminal offense to grand jury, 24 A.L.R.4th 316.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records, 45 A.L.R.4th 550.

Media's dissemination of material in violation of injunction or restraining order as contempt - federal cases, 91 A.L.R. Fed. 270.

6A C.J.S. Arrest §§ 43 to 60; 22 C.J.S. Criminal Law §§ 324 to 338.