Any member of the legislature who shall vote or use his influence for or against any matter pending in either house in consideration of any money, thing of value or promise thereof, shall be deemed guilty of bribery; and any member of the legislature or other person who shall directly or indirectly offer, give or promise any money, thing of value, privilege or personal advantage, to any member of the legislature to influence him to vote or work for or against any matter pending in either house; or any member of the legislature who shall solicit from any person or corporation any money, thing of value or personal advantage for his vote or influence as such member shall be deemed guilty of solicitation of bribery.

ANNOTATIONS

Cross references. — For penalty for bribery, see N.M. Const., art. IV, § 40.

Comparable provisions. — Wyoming Const., art. III, § 42.

Statutory crime void. — The statutory crime of demanding or receiving a bribe as a public official (30-24-2 NMSA 1978) conflicts with the constitutional crime of soliciting a bribe as a member of the legislature and is therefore void. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, set aside in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Word "person" includes individuals and entities that are not corporations; thus, in a prosecution for soliciting a bribe as a member of the legislature, it was not necessary for the state to prove that the entity from which the defendant solicited a bribe was a corporation. State v. Olguin, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731, aff'g in part, setting aside in part, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92.

Indictment hereunder need not allege that the matter was pending in either house. State v. Lucero, 1915-NMSC-007, 20 N.M. 55, 146 P. 407.

Standard of proof. — Since violation of this section is a felony, the proof would have to be beyond a reasonable doubt. 1965 Op. Att'y Gen. No. 65-229.

This provision covers three types of activity, namely, (1) a legislator voting or using his influence for or against any pending legislation in consideration of any money, thing of value or promise thereof, (2) any legislator or other person who offers, gives or promises to give anything of value to a member of the legislature to influence him to vote or work for or against any pending legislation and (3) any legislator who solicits anything of value for his vote or influence. 1965 Op. Att'y Gen. No. 65-229.

Paid lobbyist. — A legislator who is a paid lobbyist on retainer would, in all probability, be precluded from voting on or in any way using his influence for or against any pending legislation which would directly affect the person or persons paying the retainer. 1965 Op. Att'y Gen. No. 65-229.

Section not applicable to lieutenant governor. — While the lieutenant governor presides over the senate, he is not a member of the legislative branch of government, but of the executive department, and is not included within the scope of this section. 1965 Op. Att'y Gen. No. 65-229.

Impeachment route could be used for violation of this section. 1965 Op. Att'y Gen. No. 65-229.

Enjoining violations. — Although only in limited instances will the courts enjoin the commission of a crime, where necessary to protect property and property rights from irreparable injury, the courts will issue an injunction; thus, it might be that the courts would enjoin a violation of this section. 1965 Op. Att'y Gen. No. 65-229.

Criminal prosecution. — While bribery and solicitation thereof are secretive crimes which usually come to light, if at all, after the offense has been committed, it is the duty of the district attorney to prosecute all crimes for the state, and if he fails or refuses to do so, the attorney general is authorized to act on behalf of the state if after a thorough investigation such action is ascertained to be advisable. 1965 Op. Att'y Gen. No. 65-229.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Bribery §§ 12 to 14.

Liability of one cooperating in bribery which he was incapable of committing personally, 74 A.L.R. 1114, 131 A.L.R. 1322.

Candidate, statement by, regarding salary or fees of office, as bribery, 106 A.L.R. 493.

Recovery of money paid or property transferred as a bribe, 60 A.L.R.2d 1273.

Entrapment to commit bribery or offer to bribe, 69 A.L.R.2d 1397.

Furnishing public official with meals, lodging or travel, or receipt of such benefits, as bribery, 67 A.L.R.3d 1231.

Criminal offense of bribery as affected by lack of authority of state public officer or employee, 73 A.L.R.3d 374.

11 C.J.S Bribery §§ 1 to 7.