No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
History: Laws 1937, ch. 65, § 10; 1941 Comp., § 42-1910; 1953 Comp., § 41-19-10.
ANNOTATIONSCross references. — For habeas corpus, see 44-1-1 to 44-1-37 NMSA 1978.
Violations of the extradition act. — The New Mexico constitution does not provide greater due process rights than the federal constitution for violations of the state extradition act and the metropolitan court was not deprived of personal jurisdiction over a defendant because of his illegal extradition. State v. Nysus, 2001-NMCA-023, 130 N.M. 431, 25 P.3d 270, cert.denied, 130 N.M. 254, 23 P3d 929.
Jurisdiction occurs upon arrest on out-of-state charges. — Under this section, the district court does not obtain jurisdiction over the person until after an arrest on the out-of-state charge has been made, so, where there was never an arrest, and the defendant has not suffered any damage, subsequent statutory proceedings for extradition are not precluded by a court's earlier actions without jurisdiction. State v. Nicolini, 1978-NMSC-021, 91 N.M. 484, 576 P.2d 290.
Application for writ. — If a fugitive desires to test the legality of his arrest, the judge of the court of record determines a reasonable time within which he is to apply for the writ of habeas corpus. This provision of the extradition act helps assure that a fugitive will not remain incarcerated in the asylum state for an unduly long period of time after arrest under a governor's warrant. 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. — 31A Am. Jur. 2d Extradition §§ 123 to 143.
Right to appeal from order releasing one in extradition proceedings, 5 A.L.R. 1156.
Right of one arrested on extradition warrant to delay to enable him to present evidence that he is not subject to extradition, 11 A.L.R. 1410.
Motive or mission of defendant in going to asylum state as affecting right to extradite him, 13 A.L.R. 415.
Right to try one for offense other than that named in extradition proceedings, 21 A.L.R. 1405.
Right to prove absence from demanding state or alibi on habeas corpus in extradition proceedings, 51 A.L.R. 797, 61 A.L.R. 715.
Bar of limitations as proper subject of investigation in extradition proceedings or in habeas corpus proceedings for release of one sought to be extradited, 77 A.L.R. 902.
Determination in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged, 81 A.L.R. 552, 40 A.L.R.2d 1151.
Bond to indemnify public against expense of extradition or other criminal proceedings in event they are unsuccessful as contrary to public policy, 94 A.L.R. 355.
Motive or ulterior purpose of officials demanding or granting extradition as proper subject of inquiry, 94 A.L.R. 1493.
Sanity or insanity or pendency of lunacy proceedings as matters for consideration in extradition proceedings, 114 A.L.R. 693.
Discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings, 33 A.L.R.3d 1443.
35 C.J.S. Extradition § 34.