I. B. Tomlinson, John G. Pidgeon, of Bisbee, for appellant.
Fred O. Wilson, Atty. Gen., Phil J. Munch, Asst. Atty. Gen., Wesley E. Polley, of Bisbee, County Atty. for Cochise County, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[72 Ariz. 116] Harold Thomas Lantz, defendant-appellant herein, was convicted of the murder of one Ada Cora Park and the death penalty was imposed. From the judgment and the order overruling his motion for a new trial defendant appeals.
A statement of the pertinent facts will be deferred until we reach a discussion of assignments presented respecting the question [72 Ariz. 117] of sufficiency of the evidence to establish the corpus delicti before the admission in evidence of the confessions of defendant.
There are presented to us six assignments of error which we will discuss in the order presented.
Appellant contends first that the court erred in setting the case for trial in the absence of both defendant and his counsel, and in failing to give either of them notice of the date such setting would be made.
An examination of our criminal rules of procedure, sections 44-1401 to 44-1405, A.C.A.1939, inclusive, indicates that the contention is without merit. While we think it the better practice to require both defendant and his counsel to be present when an order setting a criminal case for trial is made, it is not necessary that either be in court at the time, and so long as the case is set sufficiently far enough away to enable counsel to properly prepare for trial, no substantial rights of the defendant are violated.
Defendant next complains in his assignment of error No. 2 that on October 3rd, the date on which the case came up for trial, the court erred in refusing to grant defendant a continuance. The assignment does not meet the requirements of Rule 10(1) of this court in that no ground is specified therefor. We gather from the argument of counsel for defendant, however, that by reason of the absence of both defendant and his counsel on September 22nd when the court made its order setting the case for trial, and by reason of the fact that no record of the setting was made upon the criminal dockets of the court, no legal duty devolved upon him to take cognizance of the action of the court in setting the ...