The district court to which any criminal cause shall be remanded for new trial shall proceed thereon in same manner as if said cause had not been theretofore tried.
History: Laws 1917, ch. 43, § 57; C.S. 1929, § 105-2531; 1941 Comp., § 42-1507; 1953 Comp., § 41-15-7.
ANNOTATIONSCross references. — For appellate rule, see Rule 12-402 NMRA.
Definition of "new trial". — The usual definition of a new trial, both common law and statutory, is that it is a reexamination of an issue of fact in the same court after a verdict by a jury. State v. Nelson, 1959-NMSC-023, 65 N.M. 403, 338 P.2d 301, cert. denied, 361 U.S. 877, 80 S. Ct. 142, 4 L. Ed. 2d 115.
District court retries and reexamines all fact issues. — Since a vast majority of judicial pronouncements relative to a new trial state that it is a reexamination of an issue of fact in the same court, the legislature, by enacting this section, did not intend to provide that the trial judge who had presided over the original trial without objection could be ousted of jurisdiction to retry the case. Nor does this statutory provision contemplate a new information or indictment, rearrest or a new preliminary hearing. This section simply means that the district court to which any case is remanded for a new trial shall reexamine and retry all issues of fact. State v. Nelson, 1959-NMSC-023, 65 N.M. 403, 338 P.2d 301, cert. denied, 361 U.S. 877, 80 S. Ct. 142, 4 L. Ed. 2d 115.
Reexamination of fact not admissiblity of evidence. — This section simply means that the district court to which any case is remanded for a new trial shall re-examine and re-try all issues of fact. Neither the wording nor the title of the act of which this section is a part suggests in any manner that it applies to the admissibility of evidence upon retrial. State v. De Santos, 1978-NMCA-012, 91 N.M. 428, 575 P.2d 612.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d New Trial §§ 587 to 590.
Right of indigent defendant in criminal case to aid of state as regards new trial, 55 A.L.R.2d 1072.
Conviction of lesser offense as bar to prosecution for greater offense on new trial, 61 A.L.R.2d 1141.
Propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.
Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.