Filing of An Information In New Mexico
In State v. Chavez, 93 N.M. 270, 599 P.2d 1067 (Ct. App. 1979) the former grand jury statute, NMSA 1953, 41-5-27 (1854), did not apply to the filing of an information because the statute was enacted prior to the constitutional amendment that gave the State the authority to proceed by information. 93 N.M. at 272, 599 P.2d at 1069.
This reasoning does not apply to Section 31-6-11.1 given that it was enacted in 1979, after the constitutional amendment.
Nonetheless, the legislature did not intend for Section 31-6-11.1 to apply to the filing of an information on the ground that the legislature is presumed to have been aware of the availability of this method of initiating a prosecution and yet chose not to address it.
See Benavidez v. Sierra Blanca Motors, 120 N.M. 837, 843, 907 P.2d 1018, 1024 (Ct. App. 1995) (discussing rule of expressio unius est exclusio alterius); see also Chavez, 93 N.M. at 274, 599 P.2d at 1071 (expressing doubt that Section 31-6-11.1 would apply to the filing of an information given that, by its terms, the statute applies only to grand jury proceedings).
Further, we note that our conclusion that Section 31-6-11.1 does not apply to the filing of an information is consistent with the opinions of other courts that have addressed this issue.
See Orsini v. State, 286 Ark. 283, 691 S.W.2d 175, 177 (Ark. 1985); Rea v. State, 3 Okla. Crim. 269, 105 P. 381, 381-82 (Okla. Crim. App. 1909), overruled on other grounds by Cole v. State, 18 Okla. Crim. 430, 195 P. 901, 903 (Okla. Crim. App. 1921); 42 C.J.S., supra, 43, at 365 ("A statute prohibiting a charge from being resubmitted to the grand jury upon return of a no true bill does not prevent an accusation by information after the grand jury has investigated the charge.").