No person who has been discharged upon a habeas corpus shall be again imprisoned or restrained for the same cause, unless indicted therefor, convicted thereof or committed for want of bail by some court of record having jurisdiction of the cause; or unless after a discharge for a defect of proof or for some material defect in the commitment in a criminal case, he is again arrested on sufficient proof and committed by legal process.

History: Laws 1884, ch. 1, § 27; C.L. 1884, § 2038; C.L. 1897, § 2808; Code 1915, § 2616; C.S. 1929, § 63-128; 1941 Comp., § 25-1128; 1953 Comp., § 22-11-28.

Civil res judicata limitations apply to criminal cases. — The doctrine of res judicata, as applied to criminal cases, is subject to the same limitations as apply in civil cases. 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).

Judgment res judicata to issues necessary to determine detention's legality. — An order or judgment discharging one in habeas corpus is conclusive as to the illegality of the detention or imprisonment and is res judicata of those issues of law and fact necessary to the determination of the legality of the detention. 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).

Release by writ does not exonerate from charges. — When defendants obtained a release from custody by the writ, they were not exonerated from the charges for which they were sentenced. The only effect of the release was to set aside their pleas and the sentence. They may then be again proceeded against as though there has been no prior proceedings. 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).

Other findings gratuitous when release based upon specific ground. — Where petitioners were successful in the habeas corpus proceeding because the court found that they had not been afforded effective counsel at trial, any finding that their confessions were involuntary was gratuitous and not necessary to the decision, and therefore not res judicata. 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).

"Former jeopardy" clause of constitution does not preclude a retrial of a defendant whose sentence is set aside because of an error in the proceedings leading to the sentence or conviction. This is equally true where the conviction is overturned on collateral rather than direct attack, by petition for habeas corpus, for example. 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).

Retrial after release on writ not double jeopardy. — Where defendant served more than a year for prior conviction of larceny before being released on habeas corpus due to lack of jurisdiction, subsequent trial for same offense did not constitute double jeopardy. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Arresting one who has been discharged on habeas corpus or released on bail, 62 A.L.R. 462.