If it appears that the party has been legally committed for any criminal offense, or if he appears, by the testimony offered with the return upon the hearing thereof, to be guilty of such an offense, although the commitment is irregular, the officer before whom such party is brought shall proceed to let such party to bail, if the case be bailable and good bail is offered, or if not, shall forthwith remand such party.
History: Laws 1884, ch. 1, § 19; C.L. 1884, § 2030; C.L. 1897, § 2799; Code 1915, § 2607; C.S. 1929, § 63-119; 1941 Comp., § 25-1119; 1953 Comp., § 22-11-19.
ANNOTATIONSCross references. — For habeas corpus proceedings to obtain release on bail, see 44-1-23, 44-1-24 NMSA 1978.
Petitioner remanded for new sentence where illegality is void sentence. — Where illegality of restraint complained of in habeas corpus is imposition of void sentence on legal conviction, petitioner should be remanded or detained for new sentence. Jordan v. Swope, 1932-NMSC-015, 36 N.M. 84, 8 P.2d 788.
This section does not require granting of bail in every case. 1974 Op. Att'y Gen. No. 74-38.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Habeas Corpus § 64.
39 C.J.S. Habeas Corpus § 36.