APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Mr. Richard Harless, County Attorney, and Mr. Darrel Parker, Deputy County Attorney, for Appellee.
Mr. L. J. Cox and Mr. Geo. T. Wilson, for Appellants.
[60 Ariz. 103] LOCKWOOD, C.J.
On May 24, 1941, Donald Peters and Herb Bechtel, defendants, together with one Clarence Hammons, were jointly informed against by the county attorney of Maricopa County for the crime of burglary. No demand was made for a severance, but when the case was called for trial, Hammons withdrew his plea of not guilty theretofore entered, and pleaded guilty,
and the matter went to trial before a jury as against defendants alone. They were found guilty as charged by the jury and were sentenced, respectively, to serve terms in the state prison. After the usual motion for new trial was made and overruled, this appeal was taken.
There are two assignments of error. The first is that the court erred in denying the motion for new trial made on the ground there was newly discovered evidence which was not available to defendants at the trial, and which was such as to render a different verdict reasonably probable upon a new trial, and the additional ground that the confession and testimony of Hammons was not supported by any credible evidence.
The second assignment is that the court erred in not permitting counsel for defendants to cross examine Hammons in regard to certain matters.
The first question is as to the newly discovered evidence. The situation presented by the record on this [60 Ariz. 104] point is decidedly unusual. The motion for new trial set up, among others, the following ground:
"12. That new and material evidence, which if introduced at the trial would probably have changed the verdict has been discovered which the defendants could not with reasonable diligence have discovered and produced upon the trial, and which defendants desired to introduce and supplement by affidavits to be hereafter filed."
In support of No. 12 three affidavits were filed. The first was by one Robert Galloway going to alleged misconduct of the jury. This we need not consider for the reason that the particular misconduct shown by the affidavit was not assigned as one of the grounds of the motion for new trial.
The other two affidavits by Wayne Custer and Marie Cook are as to impeaching statements made before her testimony under oath by Dorris Hammons, one of the witnesses used by the state in rebuttal. Testimony of this nature usually does not justify a new trial. Indian Fred v. State, 36 Ariz. 48, 282 P. 930.
There were also two unverified statements. One was by Joe Hammons, one of the witnesses at the trial, in which he stated that certain of the testimony which he gave at the trial was untrue, and, in substance, that he had been induced to give his testimony as a result of certain threats and promises made to him by a deputy sheriff. There was also a statement by one of defendants' counsel, in which he said he had been shown a confession made by Hammons to another burglary, in which confession he was asked if he had any statement to make in regard to other robberies, and he replied he had none. This statement further said the attorney had been informed by one of the officials of Pinal County that Hammons had made oral confessions to many burglaries, but the details he gave did not fit in with some of ...