Harboring or aiding a felon consists of any person, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister by consanguinity or affinity, who knowingly conceals any offender or gives such offender any other aid, knowing that he has committed a felony, with the intent that he escape or avoid arrest, trial, conviction or punishment.
In a prosecution under this section it shall not be necessary to aver, nor on the trial to prove, that the principal felon has been either arrested, prosecuted or tried.
Whoever commits harboring or aiding a felon is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-22-4, enacted by Laws 1963, ch. 303, § 22-4.
ANNOTATIONSConstitutionality. — This section is not unconstitutional for vagueness. State v. Rogers, 1980-NMCA-059, 94 N.M. 527, 612 P.2d 1338, cert. denied, 94 N.M. 629, 614 P.2d 546 .
Common law. — This section grew out of the common law of accessories after the fact. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.
The offense of harboring a felon had its genesis in the common law offense of accessory after the fact. State v. Gardner, 1991-NMCA-058, 112 N.M. 280, 814 P.2d 458, cert. denied, 112 N.M. 235, 814 P.2d 103.
Classifications reasonable. — Exemption of certain named groups of persons from application of this section on the basis of relationship to the felon are reasonable classifications and do not violate the equal protection clauses of the New Mexico and United States constitutions. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.
Elements of offense. — Under this section and the common law applicable to accessories, in order to convict a defendant as an accessory, the state must prove that a felony has been committed and that the defendant knew the offender committed a felony. State v. Gardner, 1991-NMCA-058, 112 N.M. 280, 814 P.2d 458, cert. denied, 112 N.M. 235, 814 P.2d 103.
This section requires that the state prove that a specific felony has been committed, whether or not the perpetrator has been arrested, prosecuted, or tried. State v. Gardner, 1991-NMCA-058, 112 N.M. 280, 814 P.2d 458, cert. denied, 112 N.M. 235, 814 P.2d 103.
State failed to prove that defendant knew that the person that she allegedly "harbored" had committed a felony; the state had to prove that the person had actually committed the felony, and also had to prove that defendant knew that such felony had been committed by that person. State v. Maes, 2003-NMCA-054, 133 N.M. 536, 65 P.3d 584, cert. denied, 133 N.M. 593, 66 P.3d 962.
To aid means to assist, support or help. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.
"Felon". — The legislature intended to include, within the meaning of the word "felon", felons already convicted but who are wanted for punishment as well as persons who have committed a felony but who have not been arrested, prosecuted, or tried. State v. Serna, 1991-NMCA-102, 112 N.M. 738, 819 P.2d 688.
A felony under this section is a crime defined at law as a felony; the status of the person harbored or aided, such as a juvenile, is not the determinant. State v. Contreras, 2002-NMCA-031, 131 N.M. 651, 41 P.3d 919, cert. denied, 131 N.M. 737, 42 P.3d 842.
If revealing felon would also reveal spouse. — This section does not exempt a defendant from prosecution where she could not have revealed the presence of a felon in her house without also revealing the presence of her husband, another felon. State v. Mobbley, 1982-NMCA-122, 98 N.M. 557, 650 P.2d 841, cert. denied, 98 N.M. 590, 651 P.2d 636.
Crimes of harboring felon and conspiracy to harbor felon do not merge. State v. Smith, 1985-NMCA-011, 102 N.M. 512, 697 P.2d 512, cert. denied.
Harboring does not supersede crime of assisting escape. — The offense of harboring or aiding a felon was not meant to supersede the crime of assisting escape. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.
Evidence sufficient. — Evidence that defendant's girl friend, with whom he lived, was present and witnessed shootings by him (even though she claimed not to have seen gun or observed shootings), was with defendant at the place of the shootings afterwards and later at the house in which they were apprehended, that she undertook to close door upon the arresting officer, and that she ran toward the front of the house while defendant secreted himself in a closet, together with all inferences reasonably deducible therefrom, supported conviction for aiding defendant with intent that he escape or avoid arrest. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.
Law reviews. — For article, "The Advocate's Role in the Legal System," see 6 N.M.L. Rev. 1 (1975). State v. Maes, 2003-NMCA-054, 133 N.M. 536, 65 P.3d 584.
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Harboring Criminals, § 1 et seq.