Any person held by a committing magistrate to await the action of the grand jury on a charge of felony or other infamous crime, may in open court with the consent of the court and the district attorney, to be entered upon the record, waive indictment and plead to an information in the form of an indictment filed by the district attorney, and further proceedings shall then be had upon said information with like force and effect as though it were an indictment duly returned by the grand jury.

ANNOTATIONS

Cross references. — For provision on indictment and information and rights of accused, see N.M. Const., art. II, § 14.

Generally regarding use of information. — Prior to 1923 amendment to N.M. Const., art. II, § 14, the permissive use of an information was surrounded by so many safeguards as to render it unlikely that framers could have contemplated that requirements of N.M. Const., art. II, § 14, could be waived otherwise than by provisions of this section. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230.

Federal grand jury requirement not applicable to states. — Presentment or indictment of a grand jury, required by U.S. Const., amend. V, is not applicable to the states. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393.

No entitlement to grand jury indictment. — Defendant who was charged by criminal information was not entitled to be indicted by grand jury because under N.M. Const., art. II, § 14, a defendant may be charged either by grand jury action or by a criminal information. State v. Mosley, 1968-NMCA-077, 79 N.M. 514, 445 P.2d 391.

This section inapplicable where information used. — Since defendant was charged by criminal information, provisions of this section concerning waiver of grand jury indictment and consent to such waiver are not applicable. Flores v. State, 1968-NMCA-057, 79 N.M. 420, 444 P.2d 605.

Even when person arrested before information filed. — Person arrested before information is filed is not forthwith entitled to grand jury action in his case, and subsequent filing of an information does not violate this section. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506.

"Open court" means a time and place when court is regularly organized for transaction of business, and must be limited to regular sessions of court held at time fixed by law or specially called by judge in accordance with law. 1912 Op. Att'y Gen. No. 12-891.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 41 Am. Jur. 2d Indictments and Informations § 6 et seq.

"Infamous" offense, what is, within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002.

Right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.

42 C.J.S. Indictments and Informations § 7.