APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General and Mr. Thomas J. Croaff, Assistant Attorney General, for Appellee.
Mr. Joseph B. Judge, for Appellant.
[61 Ariz. 234] ROSS, J.
Eva Wilbur Cruce in April, 1943, was tried and convicted jointly with Luis Lopez, (1) of feloniously marking and branding a six months old paint colt, the property of another person, (2) of feloniously killing a certain bay mare branded 4F, the property of one Carlos Ybarra, (3) of feloniously stealing a certain six months old paint colt, the property of said Carlos Ybarra, and (4) with unlawfully taking such colt from its range without the owner's consent; the first three charges being felonies and the last a misdemeanor.
Defendant has appealed from the judgment of conviction, claiming she was prejudiced by the court's ruling on the admission of certain evidence over her objections, in the court's commenting on the evidence, and in an instruction. The instruction defendant asserts was erroneous and harmful was in the following words:
"You may consider the consistency or inconsistency of their statements, whether or not their statements are reasonable and logical, and all of those elements and any other elements, and any other matters that may have occurred to you during the trial of this case as it has been presented to you here in the court room."
The part of this instruction complained of is the following excerpt therefrom: "You may consider... or any other matter that may have occurred to you during the trial of this case...."
This excerpt does not reflect the meaning of the instruction. The instruction must be read and considered as a whole. We think by its very terms it limits the jury to a consideration of the evidence and proceedings, both for and against the defendant, presented in the course of the trial before the court "in the court room." It means the jury's reasons
and [61 Ariz. 235] conclusions must be controlled by the evidence as heard in the trial.
The next assignment of error concerns the order of proof. It appears that after both the state and defendant had introduced their evidence in support of and against the charges, the state was permitted to recall the defendant, who had testified in her own behalf, and ask her certain questions for the purpose of impeachment.
It is admitted by the defendant that the order in which evidence is offered and admitted is largely in the court's discretion, but in this case she contends the court abused its discretion, which substantially affected defendant's right to a fair and impartial trial.
A careful examination of the record impresses us that the court's ruling was not erroneous but permissible. See Hamit v. State, 42 Okl.Cr. 168, 275 P. 361; Spadachene v. State, 137 Tex. Cr. R. 26, 127 ...