APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Appellee.
Mr. Greg Garcia, for Appellants.
[59 Ariz. 427] ROSS, J.
Frank Sanchez and George Eredia were jointly informed against for the crime of rape, jointly tried and convicted, and have appealed to this court.
The assignments of error, four in number, are all directed at the rulings of the court in the course of the trial and at the court's order overruling appellants' motion for "a new trial because of the passion and prejudice of the trial jury." The assignments are as follows:
"1. The court erred in refusing to grant a severance in the trial of this case.
"2. The court erred in admitting in evidence a certain confession made by George Eredia, one of the defendants herein, over the objection of the defendants.
"3. The court erred in refusing to admit the transcript of the testimony of the preliminary hearing in evidence. $"4. The court erred in refusing to grant defendant's motion for a new trial because of the passion and prejudice of the trial jury."
We consider these assignments in their order. [59 Ariz. 428]
The new rules of criminal procedure (section 44-1806, Arizona Code 1939) provide that defendants jointly charged shall be tried jointly, "unless the court in its discretion on the motion of the county attorney or any defendant orders separate trials."
The court's minute entry of October 31, 1941, shows that defendant George Eredia moved that he "be given a separate trial," which is the only record of any such motion. Sanchez made no motion for a separate trial. While the court's ruling was correct under any view taken, certainly Sanchez cannot complain since
he asked for no separate trial. He seems to be the only one now complaining of ...