Malicious criminal prosecution consists of maliciously procuring or attempting to procure an indictment or otherwise causing or attempting to cause a criminal charge to be preferred or prosecuted against an innocent person, knowing him to be innocent.

Whoever commits malicious criminal prosecution is guilty of a misdemeanor.

History: 1953 Comp., § 40A-27-1, enacted by Laws 1963, ch. 303, § 27-1.

Bad check as probable cause. — Allegation of complaint that two years before prosecution took place plaintiff had given a fraudulent check sufficiently showed that "probable cause" existed for bringing the criminal action and made immaterial other allegations with reference to defendant's motive in commencing prosecution. Marchbanks v. Young, 1943-NMSC-024, 47 N.M. 213, 139 P.2d 594.

Mayor not liable. — Under the circumstances mayor charged by plaintiff with false arrest and imprisonment and malicious prosecution had probable cause to believe that a crime or misdemeanor was being committed in his presence where plaintiff, stockholder and manager of a racing firm whose lease of racetrack had been canceled by the city, stopped a circus cortege on the highway before it could enter the track for the purpose of wintering therein; hence, verdict in mayor's favor was supported by the evidence. Cherry v. Williams, 1957-NMSC-086, 63 N.M. 244, 316 P.2d 880.

Law reviews. — For note, "Municipal Assumption of Tort Liability for Damage Caused by Police Officers," see 1 N.M.L. Rev. 263 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Malicious Prosecution § 197.

Institution of confessed judgment proceedings as ground of action for abuse of process or malicious prosecution, 87 A.L.R.3d 554.

Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.

Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for malicious prosecution, 94 A.L.R.3d 791.

Venue in action for malicious prosecution, 12 A.L.R.4th 1278.

Termination of criminal proceedings as result of compromise or settlement of accused's civil liability as precluding malicious prosecution action, 26 A.L.R.4th 565.

Nature of termination of civil action required to satisfy element of favorable termination to support action for malicious prosecution, 30 A.L.R.4th 572.

Liability of attorney, acting for client, for malicious prosecution, 46 A.L.R.4th 249.

Malicious prosecution: defense of acting on advice of justice of the peace, magistrate, or lay person, 48 A.L.R.4th 250.

Liability of better business bureau or similar organization in tort, 50 A.L.R.4th 745.

Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R.4th 843.

Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R.4th 1031.

Admissibility of evidence of polygraph test result, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R.5th 663.

54 C.J.S. Malicious Prosecution § 7.