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State v. Lane

Supreme Court of Arizona

November 15, 1949

STATE
v.
LANE

Accordingly it is ordered that the case be reversed and remanded for a new trial.

Lenkowitz & Wein, of Phoenix, Charles C. Stidham, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Charles Rogers, Asst. Atty. Gen., Maurice Barth, Asst. Atty. Gen., for appellee.

Phelps, Justice. La Prade, C. J., and Udall, Stanford, and De Concini, JJ., concurring.

OPINION

Phelps, Justice.

Page 822

[69 Ariz. 238] Appellant Charles E. Lane, Jr., hereinafter referred to as defendant was charged by an information filed in the Maricopa County Superior Court with the murder of one Mary Alice Lane, in said county and state on or about February 10, 1948, to which defendant entered a plea of not guilty. The cause regularly came on for trial and at the close thereof a verdict of murder of the first degree was returned by the jury fixing the punishment at life imprisonment in the state penitentiary at Florence.

Thereafter upon the denial of a motion for a new trial and motion in arrest of judgment the court pronounced its judgment and sentence in conformity with the verdict of the jury.

From said judgment and orders denying defendant's said motions, defendant has appealed to this court.

We do not deem a statement of facts necessary except as they may be developed in discussing the points raised on appeal.

Defendant has presented six assignments of error which may be logically grouped into two divisions raising two primary questions of law for our consideration.

Assignments 1 and 2 are directed to what defendant terms a fatally defective information and the court's action in permitting the county attorney to amend said information after the jury had been impaneled and sworn to try the case. Assignments 3, 4, 5 and 6 challenge the admissibility of the testimony of the father of defendant offered by the state in rebuttal and the alleged error of the court in permitting the state to cross-examine and to impeach said witness.

It appears that after the jury had been impaneled and sworn when the clerk [69 Ariz. 239] was reading the information in the case, it was discovered for the first time that the information had not been signed by the county attorney and the court upon the request of the state permitted the county attorney to sign said information. The defendant vigorously objected to such amendment and moved for a mistrial upon the ground that the information did not conform or comply with the laws of the state of Arizona as set forth in section 44-233 of the Code, ...


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