All trials of crime shall be had in the county in which they were committed. In the event elements of the crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed. In the event death results from the crime, trial may be had in the county in which any material element of the crime was committed, or in any county in which the death occurred. In the event that death occurs in this state as a result of criminal action in another state, trial may be had in the county in which the death occurred. In the event that death occurs in another state as a result of criminal action in this state, trial may be had in the county in which any material element of the crime was committed in this state.

History: 1953 Comp., § 40A-1-15, enacted by Laws 1963, ch. 303, § 1-15.

Cross references. — For rights of persons accused of crime, see N.M. Const., art. II, § 14.

For provisions on change of venue, see 38-3-3 to 38-3-7 NMSA 1978.

For venue in prosecution for violation of act regulating motion pictures, see 57-5-20 NMSA 1978.

I. GENERAL CONSIDERATION.

This section merely reiterates constitutional right of venue in N.M. Const., art. II, § 14. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Continuing crime. — For purposes of a continuing crime, venue is proper in any county in which the continuing conduct has occurred. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

Venue. — Where police officer chased defendant, who was speeding, from Santa Fe county into Rio Arriba county where defendant was placed under arrest for an outstanding warrant and where police officer discovered drugs and drug paraphernalia during an inventory search of defendant's car, Santa Fe county venue was proper because trafficking by possession with intent to distribute is a continuing offense which occurred in each county through which defendant traveled while in possession of the drugs. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

Meaning of "trial". — In its strict definition, the word "trial" in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict; and the term "trial" does not extend to such preliminary steps as the arraignment and giving of the pleas, nor does it comprehend a hearing in error. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

"Material element of offense" of contempt. — The act of causing the service of a restraining order to be made in Eddy county constituted a material element of the alleged offense of criminal contempt and under those circumstances the venue properly laid in Eddy county. Norton v. Reese, 1966-NMSC-154, 76 N.M. 602, 417 P.2d 205.

Proper venue when elements of offense committed in different counties. — In the event elements of a crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed. Interfering with or depriving a custodial parent of their right to custody is an essential element of the crime of custodial interference as are the methods for accomplishing the interference or deprivation. Because deprivation is an element, where the person was deprived of the right of custody establishes a proper venue for the trial of the offense of custodial interference. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.

Where defendant violated an order of custody, issued by a Taos county district court, by depriving the father of the child of his right to custody, the father's right to custody exists with him in his county of residence, the county in which he was given custody, and the county in which he was deprived of the custody of his son. Under the custodial interference statute, 30-4-4 NMSA 1978, a person may be charged in the place where the harm sought to be prevented by the statute results, and therefore venue may lie in Taos county district court. State v. Lefthand, 2015-NMCA-117, cert. denied, 2015-NMCERT-011.

II. NATURE OF VENUE.

Distinction between jurisdiction and venue. — Jurisdiction refers to the judicial power to hear and determine a criminal prosecution, whereas venue relates to and defines the particular county or territorial area within a state or district in which the prosecution is to be brought or tried. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Privilege personal to accused. — Venue provision of the constitution confers a personal privilege of venue upon an accused, and this privilege may be waived. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Extent of constitutional venue provision. — The framers of the constitution sought to guarantee the right to trial by an impartial jury, rather than an absolute right to trial by a jury of the county wherein the crime is alleged to have occurred. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Assertion of privilege. — A defendant may insist on personal right or privilege of venue, and the correctness of a venue decision is reviewable to determine whether defendant was tried in the proper county. State v. Wise, 1977-NMCA-074, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414.

Change of venue effective in overcoming local bias and prejudice. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402.

III. PROOF.

Venue need not be proven beyond a reasonable doubt. State v. Wise, 1977-NMCA-074, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414.

Affirmative proof of venue unnecessary. — It is not necessary in a trial for murder that venue be affirmatively proven. Territory of N.M. v. Hicks, 1892-NMSC-024, 6 N.M. 596, 30 P. 872, overruled on other grounds by Haynes v. United States, 1899-NMSC-003, 9 N.M. 519, 56 P. 282.

Venue may be proved by circumstantial evidence, and when there is nothing in the record to raise an inference to the contrary, slight circumstances are sufficient to prove venue by a preponderance of the evidence. State v. Nelson, 1959-NMSC-023, 65 N.M. 403, 338 P.2d 301, cert. denied, 361 U.S. 877, 80 S. Ct. 142, 4 L. Ed. 2d 115.

Venue, like any other fact in a case, may be proven by circumstantial evidence. State v. Mares, 1921-NMSC-048, 27 N.M. 212, 199 P. 111.

Venue proved by incidental evidence. — If evidence incidentally given in connection with facts in case shows that venue was properly laid, it is a sufficient proof of venue. Territory of N.M. v. Hicks, 1892-NMSC-024, 6 N.M. 596, 30 P. 872, overruled on other grounds by Haynes v. United States, 1899-NMSC-003, 9 N.M. 519, 56 P. 282.

Omission in indictment not fatal. — Trial of one charged with homicide may take place either where the mortal wound was inflicted or where the person died, and where prosecution was in county where the mortal wound was inflicted, an indictment omitting allegation of place of death was not fatally defective. State v. Montes, 1917-NMSC-026, 22 N.M. 530, 165 P. 797.

Credibility of venue testimony. — Attacks upon the credibility of the witnesses who testified concerning venue is a matter for the jury to decide. State v. Garcia, 1967-NMSC-140, 78 N.M. 136, 429 P.2d 334.

No instruction on venue is required, because so long as the crime occurred in New Mexico, the county of the crime is not necessary for jury determination. State v. Wise, 1977-NMCA-074, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414.

Although prior to the adoption of U.J.I. Criminal the practice was to instruct on venue, this practice is discontinued therein, since venue is not jurisdictional, but is a personal right or privilege of the accused which may be waived. State v. Wise, 1967-NMSC-140, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414.

Instruction and finding sufficient. — Where a jury was specifically instructed that it must find, beyond a reasonable doubt, that the fatal blow and the death occurred in the county of the venue and this the jury did so find, any argument that the blow or the cause of death may have occurred elsewhere was of no consequence. Nelson v. Cox, 1960-NMSC-005, 66 N.M. 397, 349 P.2d 118; State v. Wise, 1977-NMCA-074, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414.

IV. WAIVER.

Venue provision confers personal privilege upon accused which may be waived. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Venue unlike jurisdiction. — Venue does not affect the power of the court and can be waived, but a jurisdictional defect can never be waived because it goes to the very power of the court to entertain the action, and such a defect can be raised at any stage of the proceedings, even sua sponte by the appellate court. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Failure to object. — Right to trial in the county or district in which the offense is alleged to have been committed is waived by failure to make timely objection. City of Roswell v. Gallegos, 1966-NMSC-246, 77 N.M. 170, 420 P.2d 438.

Right to be tried in a certain county or district is a right or privilege to a particular venue which may be waived by an accused person in a number of ways, and when defendant goes to trial in another judicial district, without objection on his part, he has waived the privilege, and cannot be heard to say that the court trying him was without jurisdiction. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

Acquiescence in venue change. — Defendant who agreed to a change of venue waived any right he may have had to insist on a continuance of the case. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402.

Record of affirmative waiver unnecessary. — The record need not affirmatively show that the trial court fully informed defendant of his right of venue and of his privilege to waive this right, or was advised that defendant had been so fully informed, that defendant affirmatively waived this right or that the trial court announced its satisfaction as to the genuineness of this waiver. State v. Lopez, 1973-NMSC-041, 84 N.M. 805, 508 P.2d 1292.

V. SPECIFIC SITUATIONS.

Venue proper. — Where defendant signed checks in Bernalillo county to pay the wages of three members of an Indian tribe for performing work on a construction project that was located on Indian land in McKinley county; defendant gave the checks to an employee of defendant's construction company at a meeting place that was located outside McKinley county for delivery to the payees; the checks were delivered to the payees in McKinley county; the payees cashed the checks at a store that was located in McKinley county; and defendant's bank dishonored the checks for insufficient funds, venue was proper in McKinley county. State v. Cruz, 2010-NMCA-011, 147 N.M. 753, 228 P.3d 1173, rev'd on other grounds, 2011-NMSC-038, 150 N.M. 548, 263 P.3d 890.

Venue for violation of municipal ordinance must be laid in the municipality where the violation presumably occurred. City of Roswell v. Gallegos, 1966-NMSC-246, 77 N.M. 170, 420 P.2d 438.

Prosecution for embezzlement. — Venue in embezzlement is properly laid in the county where the possession becomes adverse to the owner. Territory v. Hale, 1905-NMSC-021, 13 N.M. 181, 81 P. 583.

Murder trial in county of death. — In a trial for murder, the evidence that the person alleged to have been murdered died in county where venue was laid, is a sufficient proof of venue. Territory of N.M. v. Hicks, 1892-NMSC-024, 6 N.M. 596, 30 P. 872, overruled on other grounds by Haynes v. United States, 1899-NMSC-003, 9 N.M. 519, 56 P. 282.

Death in Texas after wounding in New Mexico. — Where decedent dies in Texas of wound inflicted in a county in New Mexico, defendant may be prosecuted in that New Mexico county. Bourguet v. Atchison, Topeka & Santa Fe R.R., 1958-NMSC-148, 65 N.M. 200, 334 P.2d 1107.

Although the deceased died in Texas, the blow was struck in Quay county, and hence venue was proper in that county. State v. Justus, 1959-NMSC-008, 65 N.M. 195, 334 P.2d 1104, cert. denied, 365 U.S. 828, 81 S. Ct. 714, 5 L. Ed. 2d 706 (1961).

Venue proper in New Mexico where theft occurred out of state. — A person who steals property outside New Mexico and brings the stolen property into this state may be prosecuted, convicted, and punished for larceny in New Mexico. State v. Stephens, 1990-NMCA-081, 110 N.M. 525, 797 P.2d 314, cert. denied, 110 N.M. 533, 797 P.2d 983.

Venue improper where offenses completed before reaching county. — Where the first six criminal sexual penetration offenses were completed before reaching Bernalillo county, trial in Bernalillo county as to those offenses was improper. State v. Ramirez, 1978-NMCA-102, 92 N.M. 206, 585 P.2d 651.

Absent prejudice venue provisions inapplicable to Rule 93 hearing. — Neither constitutional nor statutory provisions on venue apply to a hearing under Rule 93, N.M.R. Civ. P. (considering defendant's motion to vacate judgment and sentence against him, now withdrawn), because such a hearing is neither a criminal trial nor a criminal prosecution, but rather a civil proceeding. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36 (decided under prior law).

Since defendant had no right to be present at a hearing under Rule 93, N.M.R. Civ. P. (now withdrawn), a fortiori he had no right to be heard in a particular place, absent a showing of prejudice. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36 (decided under prior law).

Section is consistent with present constitutional and statutory provisions regarding the place of prosecution. 1979 Op. Att'y Gen. No. 79-12.

Right of venue is legal concept separate and distinct from territorial jurisdiction of magistrate, and a statute affecting one does not necessarily affect the other. 1979 Op. Att'y Gen. No. 79-12.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 361 to 371.

Mail or telegraph, where offense of obtaining money by fraud through use of, is deemed to be committed, 43 A.L.R. 545.

Constitutionality of statute for prosecution of offense in county other than that in which it was committed, 76 A.L.R. 1034.

Desertion: venue of criminal charge for child desertion or nonsupport as affected by nonresidence of parent or child, 44 A.L.R.2d 886.

Criminal conspiracies as to gambling, 91 A.L.R.2d 1148.

Venue: change of venue by state in criminal case, 46 A.L.R.3d 295.

Venue in homicide cases where crime is committed partly in one county and partly in another, 73 A.L.R.3d 907.

Venue: where is embezzlement committed for purposes of territorial jurisdiction or venue, 80 A.L.R.3d 514.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Venue in bribery cases where crime is committed partly in one county and partly in another, 11 A.L.R.4th 704.

Venue for currency reporting offense under Currency and Foreign Transactions Reporting Act (CFTRA) (31 USC § 5311 et seq.), 113 A.L.R. Fed. 639.

22 C.J.S. Criminal Law §§ 177 to 181.