APPEAL from an order of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Order affirmed.
Mr. Joe Conway, Attorney General, Mr. Burr Sutter, Associate Counsel for State of Arizona, Mr. Frank E. Thomas, County Attorney, and Mr. David J. Marks, Deputy County Attorney, for Appellant.
Mr. John F. Ross, for Appellee.
[56 Ariz. 191] LOCKWOOD, J.
This is an appeal by the State of Arizona from an order of the superior court of Cochise county granting Arnold White, hereinafter called defendant, a new trial. The facts necessary for a disposition of the appeal may be stated as follows:
Defendant was tried by a jury in the superior court of Cochise county, and convicted of presenting false and fraudulent claims to the State of Arizona. After conviction, defendant filed a motion for new trial, setting forth as grounds thereof, among other things:
"(2) that there was not sufficient corroboration of the testimony of Francis H. Harrison, an accomplice.
"(3) that the conduct of the county attorney and his assistant during the progress of the trial was not in line with good practice and ethics, and was injurious and prejudicial to the rights of the defendant and not conducive to a fair and impartial trial, as follows: ...
"(c) Statement of county attorney that Hines had been convicted on testimony of an accomplice and that it was the duty of the jurors to clean up an awful condition by finding defendant guilty,..."
The motion was granted on these two grounds expressly.
The general rule in regard to an appeal from an order granting or denying a new trial is that the matter is discretionary with the trial court, and will not be reviewed by this court unless it appears affirmatively there has been an abuse of discretion. We examine the record, therefore, for the purpose of ascertaining whether the trial court did abuse its discretion in granting a new trial on both of the grounds set forth, for if it was correct on either, the fact that it was incorrect on the other is immaterial.
The first ground is that there was not sufficient corroboration of the testimony of Francis H. Harrison, who was admittedly an accomplice of defendant, if the latter were guilty of the crime charged. Our statute [56 Ariz. 192] on this point, being section 5055, Revised Code of 1928, reads as follows:
"Corroboration of accomplice. A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence which, in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it ...