In any criminal case, if the supreme court or court of appeals affirms the judgment of the district court upon review brought by the defendant, it shall direct that the sentence pronounced be executed; and if the judgment is reversed, it shall direct a new trial or that the defendant be absolutely discharged according to the circumstances of the case.

History: Laws 1917, ch. 43, § 55; 1927, ch. 93, § 8; C.S. 1929, § 105-2529; 1941 Comp., § 42-1505; 1953 Comp., § 41-15-5; Laws 1966, ch. 28, § 60.

Cross references. — For similar appellate rule, see Rule 12-402 NMRA.

Supreme court's affirmance of execution not repealed by implication. — Statute providing that on affirmance of conviction, supreme court shall direct execution was not repealed by implication as to capital cases by statute providing for order of execution by district court. Woo Dak San v. State, 1931-NMSC-056, 36 N.M. 53, 7 P.2d 940.

When supreme court affirms decision without further investigation. — Where brief for defendant upon appeal contained such an unwarranted attack upon the trial judge, his conduct, rulings, and instructions, as to amount to a scandalous and impertinent attack upon the judiciary, supreme court was warranted in striking the brief and argument from the files, and affirming the decision without further investigation. Tomlinson v. Territory, 1893-NMSC-017, 7 N.M. 195, 33 P. 950.

Notice not required as condition precedent to commitment order. — With the issuance of mandate by the appellate court, the district court is directed to issue a commitment order. Accordingly, the district court is not required to give notice to the defendant, his attorney, or his bondsmen as a condition precedent to the issuance of the commitment order. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861.

Remand for new sentence instead of new trial. — Appellate courts have the authority to remand a case for entry of judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense. The rationale for this holding is that there is no need to retry a defendant for a lesser included offense when the elements of a lesser offense necessarily were proven to a jury beyond a reasonable doubt in the course of convicting the defendant of the greater offense. State v. Haynie, 1994-NMSC-001, 116 N.M. 746, 867 P.2d 416.

Court of appeals lacks authority to modify contempt sentence. State v. Sanchez, 1976-NMCA-104, 89 N.M. 673, 556 P.2d 359.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Appellate Review § 591 et seq.

Knowledge by defendant or his attorney, before return of verdict in criminal case, of misconduct in connection with jury after their retirement as affecting right to reversal, 96 A.L.R. 530.

Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.

Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 A.L.R.3d 1174.

Prosecutor's appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 A.L.R.4th 664.