APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and case remanded for new trial.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. James A. Walsh, County Attorney and Mr. Francis J. Donofrio, Deputy County Attorney, for Appellee.
Messrs. Struckmeyer & Struckmeyer, for Appellant.
DE CONCINI, Superior Judge.
Appellant Ross was convicted with his co-defendant in the court below of the crime of robbery.
[61 Ariz. 289] The appellant brings his appeal to this court, predicating the same upon several assignments of error, the most important being that the court erred in refusing to submit but two forms of verdict; one finding both defendants guilty and the other finding both defendants not guilty.
The trial judge charged the jury as follows:
"If one of the defendants is guilty, both of the defendants are guilty. If one of the defendants is innocent, both are innocent.
"I believe that covers all the instructions requested."
At the conclusion of the charge the following colloquy ensued between court and counsel, as disclosed by the Reporter's Transcript:
"Mr. Struckmeyer (attorney for appellant Ross): I have one. That both of the defendants are not guilty if one is found not guilty, unless the other defendant knew of the acts constituting the crime.
"The Court: Under all of the evidence there couldn't be anything else other than knowledge, under the evidence here.
"Mr. Donofrio (State's attorney): The accessory is just as guilty as the principal.
"Mr. Struckmeyer: Not an accessory after the fact. I take an exception, then, to the refusal of the court to ...