A person may be charged with and convicted of the crime as an accessory if he procures, counsels, aids or abets in its commission and although he did not directly commit the crime and although the principal who directly committed such crime has not been prosecuted or convicted, or has been convicted of a different crime or degree of crime, or has been acquitted, or is a child under the Children's Code [Chapter 32A NMSA 1978].

History: 1953 Comp., § 40A-1-14, enacted by Laws 1963, ch. 303, § 1-14; 1972, ch. 97, § 66.

Aiding and abetting and conspiracy are distinct and separate concepts. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

Accessory is one who "procures" commission of a crime. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Meaning of terms. — The word "crime," as used in the statute, means the principal offense, as in this case "armed robbery," and the term "as an accessory" is merely describing in different terms one who aids and abets in the commission of the crime, and authorizes such person to be charged with and convicted of the crime. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Abolition of distinction between principal and accessory places defendant on notice that he or she could be charged as a principal and convicted as an accessory or vice versa. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145.

Aiding and abetting not distinct offense. — There is nothing in this section indicating an intent to make one who aids and abets in the commission of a crime a separate offense distinct and different from the crime committed by the one actually perpetrating it, and the purpose of the legislature to authorize charging and convicting an accessory as a principal is made evident by the fact that no different penalty is provided by law for one who aids and abets. Hence, this section is to be read as though the words "as an accessory" were omitted. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Distinctions abolished. — The distinction between an accessory before the fact and a principal was abolished in this state so that every person concerned in the commission may be prosecuted, tried and punished as a principal. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Earned Meritorious Deductions Act. — Accessory liability is merely a different theory of liability, but is not a distinct offense. Accessories are therefore not convicted of a separate crime, but of the crime itself. Where defendant was convicted for violating Section 30-3-8 NMSA 1978 as an accessory to the crime, his sentence may be a serious violent offense under the Earned Meritorious Deductions Act as enumerated in Section 33-2-34L(4)(j) NMSA 1978. The fact that he pleaded guilty as an accessory and not a principal is irrelevant for purposes of the act. State v. Flores, 2005-NMCA-092, 138 N.M. 61, 116 P.3d 852.

Accessory charged as principal. — New Mexico, like many other states, long ago abolished the distinction between conviction as a principal and an accessory, so that the charge as principal includes a corresponding accessory charge. An indictment need only allege the offense, not necessarily charge the defendant as accessory. Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir. 1991).

Charging accessory as principal. — An accessory may be charged and convicted as a principal. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.

Accused may be indicted as principal even though at common law it would have been necessary to charge him as an accessory. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Although charged with disturbing meeting, defendants could be convicted of aiding and abetting that disturbance. State v. Orzen, 1972-NMCA-006, 83 N.M. 458, 493 P.2d 768.

The contention that defendant could not be charged as a principal and convicted on the basis of being an accomplice is answered by this section. State v. Smith, 1976-NMCA-048, 89 N.M. 777, 558 P.2d 46, rev'd on other grounds, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Effect of rule. — Rule 5(d), N.M.R. Crim. P. (now see Paragraph D of Rule 5-201), which requires that the indictment allege "essential facts constituting the offense," does not change the procedure authorized by this section, since "the offense," as used in Rule 5(d), N.M.R. Crim. P., means the principal offense; thus, defendant was not required to be charged as an accessory and indictment was sufficient where the language contained therein informed defendant of the essential facts of the charge of armed robbery. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414.

Elements of accessory liability. — Accomplice liability requires that the defendant share the criminal intent of the principal. There must be community of purpose, partnership in the unlawful undertaking. Indicia of such criminal intent may be as broad and varied as are the means of communicating thought from one individual to another. Mere presence and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient. State v. Johnson, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998, cert. denied, 543 U.S. 117, 125 S.Ct. 1334, 161 L.Ed.2d 162 (2005)..

Intent. — The accessory must share the criminal intent of the principal. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075; State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102.

Intent of accomplice. — One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be fairly employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the objectives of the conscious accomplice, the accomplice is not liable for it. Valdez v. Bravo, 373 F.3d 1093 (10th Cir. 2004).

Criminal intent and purpose required. — Conviction could stand only if the record supported a conclusion that defendant shared the criminal intent and purpose of the principals, and mere presence without some outward manifestation of approval was insufficient. State v. Salazar, 1967-NMSC-187, 78 N.M. 329, 431 P.2d 62.

In order for an individual to be guilty as an aider and abettor, all that was necessary was that he share the criminal intent of defendant and that a community of purpose and partnership in the unlawful undertaking be present. State v. Ortega, 1966-NMSC-185, 77 N.M. 7, 419 P.2d 219; State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340.

Criminal intent a jury question. — The question of whether the alleged aider and abettor did share the principal's criminal intent, and whether he knew the latter acted with criminal intent is one of fact for the jury and may be inferred from circumstances. State v. Riley, 1970-NMCA-015, 82 N.M. 298, 480 P.2d 693.

Intent may be inferred. — Where one defendant completed the crime of burglary by an unauthorized entry with the necessary intent and his partner knew this fact and was present and participated, the partner's intent, as an element of the crime, although not susceptible of proof by direct evidence, may be inferred from his acts. State v. Riley, 1970-NMCA-015, 82 N.M. 298, 480 P.2d 693 (Ct. App. 1971).

Specific intent required. — The "natural and probable result" standard does not apply to determine accessory liability; thus, a jury cannot convict a defendant on accessory liability for a crime unless the defendant intended the principal's acts. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Shooting at police car indicative of intent. — Defendant's theory that there is no evidence that he knew of the robbery until after its commission and thus could not have been an aider and abetter is invalid, as evidence of aiding and abetting is as broad and varied as are the means of communicating thought from one individual to another; shooting at the pursuing police car was evidence that defendant approved of the robbery and shared the robber's criminal intent. State v. O'Dell, 1973-NMCA-124, 85 N.M. 536, 514 P.2d 55.

While mere presence is insufficient, relationship to victim relevant. — Although mere presence is insufficient to establish that defendant aided and abetted a crime, defendant's relationship with victim is a factor invoking criminal liability. Where defendant is charged with care and welfare of child, he stands in position of parent and may be convicted on the basis that he failed to take reasonable steps to prevent the molestation, coupled with his friendship with perpetrator. State v. Orosco, 1991-NMCA-084, 113 N.M. 789, 833 P.2d 1155, aff'd, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.

Manifestation of approval required. — Neither presence nor presence with mental approbation is sufficient to sustain a conviction as an aider or abettor. Presence must be accompanied by some outward manifestation or expression of approval. State v. Phillips, 1971-NMCA-114, 83 N.M. 5, 487 P.2d 915; State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340.

Defendant's particular role not important. — Where the evidence as to which of the robbers took the change is sparse and conflicting, it does not matter that the evidence fails to establish, with any particularity, that defendant was the one who took the change as the jury was instructed on aiding and abetting and the evidence is substantial that defendant was at least an aider and abettor of the robbery of the change. State v. Urban, 1974-NMCA-046, 86 N.M. 351, 524 P.2d 523.

Foreseeability of result immaterial. — The fact that defendant did not bargain for the result is not material; the material fact is that he did "procure" another to perform an "unlawful act." State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Means of aiding and abetting varied. — The evidence of aiding and abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider's support or approval. Mere presence, of course, and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient. State v. Salazar, 1967-NMSC-187, 78 N.M. 329, 431 P.2d 62; State v. Ochoa, 1937-NMSC-051, 41 N.M. 589, 72 P.2d 609; State v. Luna, 1979-NMCA-048, 92 N.M. 680, 594 P.2d 340.

Accessory may be convicted regardless of principal's fate. — It was the obvious intent of the legislature to extend the statute then in force so as to permit an accessory to be prosecuted even though the one who directly committed the crime was either not prosecuted, had been acquitted, was a juvenile or had been convicted of a different crime or degree thereof. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967).

Aider and abettor may be tried and convicted even though the actual slayer is never apprehended or has been tried and acquitted. State v. Ochoa, 1937-NMSC-051, 41 N.M. 589, 72 P.2d 609.

Varying degrees of conviction permissible. — The fact that the accessory was convicted of involuntary manslaughter while the principal was convicted of voluntary manslaughter is a permissible result under the accessory statute. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Instruction on burden of proof. — Where trial court instructed on the presumption of innocence and the state's burden of proof, it was not improper to refuse defendant's proffered instruction that there was no presumption that defendant was an accessory and that he did not have burden of proving that he was not an accessory. State v. Gunzelman, 1973-NMCA-121, 85 N.M. 535, 514 P.2d 54.

Evidence. — The evidence shows aiding and abetting if it shows that by any of the means of communicating thought defendant incited, encouraged or instigated commission of the offense or made it known that commission of an offense already undertaken has the aider's support or approval. State v. Gonzales, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.

Evidence sufficient to go to jury. — Evidence that the defendants threw objects when others also threw them, and also evidence from which community of intent can be reasonably inferred, was sufficient for the issue of aiding and abetting to be submitted to the jury and was also sufficient to submit the issue of disturbing a lawful assembly. State v. Orzen, 1972-NMCA-006, 83 N.M. 458, 493 P.2d 768.

Jury may find defendant aided and abetted, but did not personally commit, crime. — That the jury could have refused to find that the defendant personally committed the crime in question is not alone a sufficient reasonable hypothesis that he did not aid and abet its commission. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 1984-NMSC-003, 100 N.M. 583, 673 P.2d 1316.

Evidence sufficient. — Evidence was sufficient to support defendant's conviction as an accessory to armed robbery, where his confession, found to be voluntary, was corroborated by other evidence at trial. Church v. Sullivan, 942 F.2d 1501 (10th Cir. 1991).

Evidence that the defendant's role in the robbery of a store was to remain outside in the car with the engine running in order to facilitate a fast getaway after others committed the robbery was sufficient to support his convictions. State v. Carrasco, 1996-NMCA-114, 122 N.M. 554, 928 P.2d 939, rev'd on other grounds, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

Evidence is constitutionally sufficient to support a finding of accessory liability where the testimony viewed in the light most favorable to the prosecution establishes that accused and his companions went to victim's mobile home with the intention of fighting; accused willingly drove to the mobile home in his own vehicle; accused broke through the front door with his four companions and attacked victim's friend as he slept in a chair; accused fought victim's friend outside the back door of the house while his four companions attacked victim; accused then reentered the mobile home and warned the others as the police arrived; and accused's actions prevented victim's friend from assisting victim who died from the attack. Valdez v. Bravo, 373 F.3d 1093 (10th Cir.), cert. denied, 543 U.S. 1008, 125 S. Ct. 622, 160 L. Ed.2d 473 (2004).

Sufficient evidence of intentional child abuse by torture. — Where a child victim testified that defendant, the child's foster father, purchased a stun gun and gave it to his son, that the child was stunned by defendant's son approximately fifteen times, was stunned by defendant's other son approximately three times, that defendant was present during the assaults by one of the sons and would laugh in response, and where there was corroborating testimony from the child's sister, a rational jury could have found defendant guilty beyond a reasonable doubt as an accessory to child abuse inflicted by another. State v. Vargas, 2016-NMCA-038.

Evidence insufficient. — Where defendant was involved in an altercation between defendant's friend and the victim; the victim and defendant unexpectedly encountered each other later the same day; defendant went into a rage at seeing the victim and punched the victim who was seated in the victim's truck; the victim then shot defendant several times; defendant fell to the ground; the victim backed the victim's truck down the driveway; one of the victim's passengers started shooting a gun from the victim's truck; defendant's friends arrived at the scene of the shooting and began firing shots at the victim's truck, killing the victim; the jury acquitted defendant of the charge of shooting at a motor vehicle; and there was no evidence that defendant called for help to anyone after defendant was shot, that defendant summoned the defendant's friends who shot at the victim's truck, that defendant made any statement, that defendant took any action that indicated that defendant was aware that defendant's friends were in the vicinity, or that defendant had any communication with defendant's friends who shot at the victim's truck after the earlier altercation with the victim, the evidence was insufficient to support defendant's conviction for aiding and abetting the murder of the victim. State v. Vigil, 2010-NMSC-003, 147 N.M. 537, 226 P.3d 636.

Circumstantial evidence which was not incompatible with defendant's innocence nor incapable of explanation upon any reasonable hypothesis of same was insufficient to permit a finding that defendant aided a forger by procuring checks for her; there were too many other explanations to account for her possession of the checks. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.

The fact that the defendant accompanied the forger of certain checks at the time that she cashed them was not sufficient to support a finding of aiding and abetting, for mere presence and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.

Knowledge of the method of the crime and presence when the crime is committed are not required. — There is no legal requirement that an accessory know in advance the exact method by which a crime is to be carried out or even that the accessory be physically present when the crime is committed. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003.

Sufficient evidence. — Where defendant's primary co-conspirator beat, drugged, and tied the victim to a bed in defendant's residence; defendant did not object to the treatment of the victim; defendant chided a secondary co-conspirator for being nervous and smoked marijuana with co-conspirator to calm the co-conspirator's nerves; defendant did not object when the primary co-conspirator considered killing the victim and burning the victim's car, but defended a secondary co-conspirator against the primary co-conspirator's violence; while the primary co-conspirator was absent from the residence for a lengthy period of time, defendant watched the victim and did not assist the victim or call the police; defendant demanded that the primary co-conspirator determine what to do with the victim before defendant's child returned from school; defendant left the residence to take the child to a store where, at the direction of the primary co-conspirator, defendant purchased charcoal liter fluid; and while defendant remained at the residence with the child, defendant's co-conspirators put the victim in the trunk of the victim's car, drove the car to a school, doused the car with the liter fluid, and burned the car, there was sufficient evidence to convict defendant of kidnapping, second-degree murder and aggravated arson, as an accessory, beyond a reasonable doubt. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For comment, "The Natural and Probable Consequences Doctrine Is Not a Natural Result for New Mexico - State v. Carrasco," see 28 N.M.L. Rev. 505 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 166, 167, 169 to 173.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

22 C.J.S. Criminal Law §§ 132 to 139.