In criminal cases where no provision of this code is applicable, the common law, as recognized by the United States and the several states of the Union, shall govern.

History: 1953 Comp., § 40A-1-3, enacted by Laws 1963, ch. 303, § 1-3.

I. GENERAL CONSIDERATION.

Cross references. — For provision making the common law the rule of practice and decision, see 38-1-3 NMSA 1978.

II. COMMON-LAW CRIMES.

A. IN GENERAL.

Common-law crimes recognized. — Common-law crimes were recognized and enforced by virtue of Laws 1851, p. 144 (41-11-1, 1953 Comp.). Musgrave v. McManus, 1918-NMSC-075, 24 N.M. 227, 173 P. 196; Ex parte De Vore, 1913-NMSC-072, 18 N.M. 246, 136 P. 47.

Common-law crimes recognized only where applicable to state. — Only so much of the common law was adopted as was applicable to New Mexico's conditions and circumstances. Blake v. Hoover Motor Co., 1923-NMSC-005, 28 N.M. 371, 212 P. 738; Childers v. Talbott, 1888-NMSC-003, 4 N.M. (Gild.) 336, 16 P. 275; Bent v. Thompson, 1890-NMSC-005, 5 N.M. 408, 23 P. 234, aff'd, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891); Ex parte De Vore, 1913-NMSC-072, 18 N.M. 246, 136 P. 47; Gurule v. Duran, 1915-NMSC-043, 20 N.M. 348, 149 P. 302, L.R.A. 1915F. 648 (1915).

Common-law crimes recognized when not in conflict with constitution or laws. — The territorial legislature adopted the common law, as the rule of practice and decision in criminal cases, thereby incorporating into the body of our law the common law, lex non scripta, of England, and such British statutes of a general nature not local to that kingdom, nor in conflict with the constitution or laws of the United States, nor of this territory, which were applicable to our condition and circumstances, and which were in force at the time of the revolution. State v. Hartzler, 1967-NMCA-022, 78 N.M. 514, 433 P.2d 231; Ex parte De Vore, 1913-NMSC-072, 18 N.M. 246, 136 P. 47.

Application of common law. — The common law of crimes applies except where the common law has been changed by statute. State v. Willis, 1982-NMCA-151, 98 N.M. 771, 652 P.2d 1222 (specially concurring opinion).

Strict construction of statutes. — The common-law rule for strict construction of criminal statutes was in force in New Mexico. Territory v. Davenport, 1912-NMSC-023, 17 N.M. 214, 124 P. 795.

Common-law year-and-a-day rule abolished. — The common-law year-and-a-day rule, under which, if a person injured by an assailant survived beyond a year and a day after receiving the injuries, the defendant was excused from criminal culpability for the death, should no longer be recognized in this jurisdiction. Due to modern advances in medical and criminal science and technology, the rationale behind the rule no longer exists. State v. Gabehart, 1992-NMCA-074, 114 N.M. 183, 836 P.2d 102.

B. PARTICULAR OFFENSES.

Perjury. — At common law, perjury was committed when a lawful oath was administered in some judicial proceeding to a person who swore willfully, absolutely and falsely in matters material to the issue, and it was perjury to take a false oath in justifying bail in any of the courts or before any person acting as a court, justice or tribunal, having power to hold such proceedings. Hence, a surety on an appeal bond from a justice of the peace (now magistrate) who swore falsely regarding his property was guilty of perjury even where the statute did not require an oath from him. Territory v. Weller, 1883-NMSC-004, 2 N.M. 470.

Prison breach. — Prison breach, a common-law practice, was punishable in New Mexico under laws 1851, p. 144 (41-11-1, 1953 Comp.). Ex parte De Vore, 1913-NMSC-072, 18 N.M. 246, 136 P. 47 (decided under prior law).

Offense against public decency. — The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality or obstruct or pervert public justice or the administration of government; and it is the common law of this commonwealth that whatever openly outrages decency and is injurious to public morals is a misdemeanor and punishable at law. State v. Hartzler, 1967-NMCA-022, 78 N.M. 514, 433 P.2d 231.

Indecent treatment of dead body. — The offense, which was and is punishable at common law, is that of indecency in the treatment or handling of a dead human body. That which outrages or shocks the public sense of decency and morals, or that which contravenes the established and known public standards of decency and morals, relative to the care, treatment or disposition of a dead human body, is punishable as an act of indecency. State v. Hartzler, 1967-NMCA-022, 78 N.M. 514, 433 P.2d 231.

The length of time the body was kept, the manner and places in which it was kept, the obvious facts of changes in and decomposition of the body, and the concealment of the body from the police officers, all evidence failure to conform to the acceptable standards of decency and morals of our society in the treatment or handling of a dead human body. State v. Hartzler, 1967-NMCA-022, 78 N.M. 514, 433 P.2d 231.

Act relating to embezzlement not part of state's common law. — The act of parliament passed in 1799 (39 Geo. III), relating to embezzlement and the decisions construing it, was not part of the common law of New Mexico. Territory v. Maxwell, 1882-NMSC-010, 2 N.M. 250.

III. CRIMINAL INTENT.

Existence of criminal intent essential. — Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, although the terms of the statute do not require it. State v. Austin, 1969-NMCA-095, 80 N.M. 748, 461 P.2d 230.

Instruction on intent jurisdictional absent legislative indication to contrary. — Except where the legislature clearly indicates a desire to eliminate the requirement of criminal intent, criminal statutes will be construed in the light of the common law and criminal intent will be required, and failure to instruct on this required element will be considered jurisdictional. State v. Fuentes, 1973-NMCA-069, 85 N.M. 274, 511 P.2d 760, cert. denied, 85 N.M. 265, 511 P.2d 751.

Legislative indication must clearly appear. — The legislature may forbid the doing of an act and make its commission criminal, without regard to the intent with which such act is done; but in such case it must clearly appear from the act, from its language or clear inference, that such was the legislative intent. State v. Austin, 1969-NMCA-095, 80 N.M. 748, 461 P.2d 230.

Whether criminal intent is essential is matter of construction. State v. Craig, 1962-NMSC-072, 70 N.M. 176, 372 P.2d 128.

IV. INDICTMENT, TRIAL AND JUDGMENT.

Constitutional provisions for presentments, indictments and information were self-executing. State v. Rogers, 1926-NMSC-028, 31 N.M. 485, 247 P. 828.

Indictment for murder. — The common-law procedure being in force in New Mexico, where the statutes have adopted the common-law definition of murder, an indictment may omit a direct charge of a purpose or intent to kill as an overt act. Territory v. Montoya, 1912-NMSC-015, 17 N.M. 122, 125 P. 622.

Charging assault with intent to murder. — In indictment for assault with intent to commit murder, the means or instrument of committing the assault should be stated, the common law being made, by statute, the rule of decision and practice, where not specifically changed. Territory v. Carrera, 1892-NMSC-023, 6 N.M. 594, 30 P. 872 (decided under prior law, now Rule 5-205 NMRA).

Raising defense of former jeopardy. — Common law required defense of former jeopardy to be specially pleaded. It could not be raised by motion for instructed verdict at conclusion of state's case. Territory v. Lobato, 1913-NMSC-030, 17 N.M. 666, 134 P. 222, aff'd, 242 U.S. 199, 37 S. Ct. 107, 61 L. Ed. 244 (1916) (decided under prior law, now Section 30-1-10 NMSA 1978).

Trial by jury. — The constitution preserves the right of trial by jury already existing, which means as it existed in the territory prior to adoption of constitution. Guiterrez v. Gober, 1939-NMSC-008, 43 N.M. 146, 87 P.2d 437.

Common-law presumption relating to spouses. — The presumption of the common law that a married woman committing a crime in presence of her husband was under coercion was rebuttable. State v. Asper, 1930-NMSC-098, 35 N.M. 203, 292 P. 225.

Opportunity for defendant to speak before judgment. — On failure of trial court to ask defendant before judgment was passed whether he had anything to say why judgment should not be pronounced upon him, or to have the record affirmatively show that fact, the cause must be remanded upon that ground alone. Territory v. Herrera, 1901-NMSC-018, 11 N.M. 129, 66 P. 523 (decided under prior law).

Discretion in sentencing. — The common law gives trial courts the discretion to make sentences consecutive or concurrent. State v. Crouch, 1965-NMSC-131, 75 N.M. 533, 407 P.2d 671.

Assessment of costs in criminal cases was unknown at common law and therefore requires statutory authority. State v. Valley Villa Nursing Ctr., Inc., 1981-NMCA-133, 97 N.M. 161, 637 P.2d 843.

Review of judgments. — The common law, vested the supreme court with jurisdiction to review judgments in criminal cases by writ of error. Borrego v. Territory, 1896-NMSC-011, 8 N.M. 446, 46 P. 349, cert. denied, 8 N.M. 655, 46 P. 211, aff'd sub nom. Gonzales v. Cunningham, 164 U.S. 612, 17 S. Ct. 182, 41 L. Ed. 572 (1896).

Law reviews. — For article, "Disclosure of Medical Information - Criminal Prosecution of Medicaid Fraud in New Mexico," see 9 N.M.L. Rev. 321 (1979).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 7, 9.

Modern status of test of criminal responsibility - state cases, 9 A.L.R.4th 526.

Voluntary absence when sentence is pronounced, 59 A.L.R.5th 135.

22 C.J.S. Criminal Law § 24.