Hereafter all persons to whom bail has been denied or who are confined for failure to give bail, may have the benefit of a writ of habeas corpus for the purpose of being admitted to bail or having the bail reduced, and the court or judge shall, upon habeas corpus, review the proceedings or action of a committing magistrate.

History: Laws 1889, ch. 29, § 1; C.L. 1897, § 2803; Code 1915, § 2611; C.S. 1929, § 63-123; 1941 Comp., § 25-1123; 1953 Comp., § 22-11-23.

Cross references. — For release on bail, see 44-1-19 NMSA 1978.

For bail generally, see Rule 5-401 NMRA.

Compiler's notes. — This section, as enacted, contained at the beginning a clause repealing 2034, 1884 C.L. The clause was omitted by the compilers of the 1915 Code.

Former statute prevented bail in capital case where proof evident. — Supreme court did not find it necessary to determine whether the constitution prohibited bail to persons coming within the exception set forth in N.M. Const., art. II, § 13, concerning persons accused of capital offenses, when proof is evident or presumption great, because 41-4-5, 1953 Comp. (since repealed) expressly prohibited the granting of bail to such defendants. Therefore, magistrate had no discretion to allow bail, since his determination was that, as to the defendants, the proof was evident or the presumption great. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

Bail not mandatory after issuance of warrant in extradition case. — This section does not require the granting of bail in every case nor does it require bail after issuance of a governor's warrant in an extradition case. 1974 Op. Att'y Gen. No. 74-38.

Law reviews. — For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Habeas Corpus §§ 40 to 43.

Bail pending appeal in habeas corpus, 63 A.L.R. 1460, 143 A.L.R. 1354.

39 C.J.S. Habeas Corpus § 111.