APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Reversed and remanded with directions.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants; Mr. John W. Corbin, County Attorney of Maricopa County, and Mr. W. T. Choisser, his Deputy, for the State.
Mr. Herman Lewkowitz, for Respondent.
[50 Ariz. 277] ROSS, J.
This is an appeal by the State of Arizona from an order granting a new trial to defendant, Al Duguid, convicted of driving an automobile upon the public highways while under the influence of intoxicating liquor. The grounds of the motion for new trial are as follows:
"I. That the court erred in the admission of testimony which was admitted in violation of the constitution -- rights guaranteed this defendant.
[50 Ariz. 278] "II. That the verdict of the jury is contrary to law.
"III. That the verdict is contrary to the evidence."
It is the contention of the State that the respondent had a fair trial, free from error, and that therefore the court's order granting new trial was arbitrary and erroneous and should be vacated and set aside. The burden of sustaining this contention is upon the appellant, for it is universally held that the trial court has a very broad discretion in the matter of granting new trials in both civil and criminal cases. 16 C.J. 1119, § 2620. And if there is any fair or just reason for the order, it will not be disturbed. The court's discretion, however, is a legal and not an arbitrary discretion and must be exercised in a legal manner. Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193. When the object in granting a new trial is to promote justice and protect the innocent, and the record so discloses, the court's discretion is properly exercised. But if upon an examination of the record it appears no mistake of law or fact occurred in the trial, and that the evidence fully sustains the conviction, it is an abuse of discretion to
grant a new trial. We will consider the three grounds of the motion in the order given.
The respondent, as required by the rules of the court, specified the point that he wished to present in his memorandum of authorities in support of his motion for a new trial. The memorandum is in these words:
"The admission of evidence on the part of Doctor Goss, one of the witnesses for prosecution, was in violation of article 2, section 10, Constitution of Arizona."
The court in granting the motion failed to give any reason therefor, but it was probably based upon respondent's [50 Ariz. 279] point that his constitutional rights had been violated, and on no other point, since no other was specified.
After respondent's arrest, and on the same evening, he was taken by the arresting officer to Dr. H. L. Goss' clinical laboratory in the Physicians' Building in Phoenix, and Dr. Goss made a chemical analysis for ethyl alcohol in respondent's urine which he furnished the doctor. This witness was permitted to testify to the results of such analysis and to state his findings. The admission of the evidence, it is contended, compelled respondent to give evidence against himself, in violation of section 10, article 2 of the Constitution, reading as follows:
"No person shall be compelled in any criminal case to give evidence against himself."
The doctor's testimony was objected to on the ground that it was not shown respondent voluntarily submitted to the urine test. When this objection was made, the court took evidence on the question and thereafter admitted the testimony. As to whether respondent voluntarily furnished the sample of urine for analysis was a preliminary question for the trial court, whose discretion ordinarily would be treated as final. Under such circumstances, the burden is upon the respondent to show that he was coerced into giving the ...