Marshall W. Haislip, Phoenix, for appellant.
Ross F. Jones, Atty. Gen., Irwin Cantor and James P. Bartlett, Asst. Attys. Gen., for appellee.
[77 Ariz. 47] LAZOVICH, Superior Court Judge.
On July 2, 1952, the defendant, Bernell Love, a Negro, was convicted by a jury in the superior court of Maricopa County of the crime of assault with a deadly weapon, a felony, upon the person of one Eddie L. Duron, manager of a Safeway store located on East Washington Street and Fifth Avenue, Phoenix, Arizona.
In support of his motion for a new trial appellant filed affidavits of his former attorney, Robert R. Weaver, and one Alice Siders. The motion was denied and judgment of guilty rendered, fixing the term of not less than one year and not more than one year and a day at the state prison. From the judgment the defendant appeals.
Briefly, the facts as brought out by the testimony at the trial are as follows:
On May 10, 1952, the appellant, accompanied by one Nellie Perkins, entered the store at the above-named location. Duron saw the defendant leave the premises with articles of merchandise without paying for same, followed him outside of the building and demanded that he return to the store while he called the police. Duron and four employees of the store testified that upon re-entering the store defendant pulled a knife from his pocket, opened the same and advanced upon Duron in a threatening manner, whereupon Duron shoved a shopping cart between him and the appellant and picked up a jar with which to defend himself; that the appellant struck at Duron with a long-bladed knife; that during the fracas Nellie Perkins pleaded with him to put the knife back in his pocket, which he did. Duron then shoved defendant to the rear of the store where he demanded the production of the knife, which was refused. Duron then removed the knife from the defendant's pocket. Duron identified the parcel containing the merchandise as being the property of the Safeway store.
The defendant's witnesses, seven in number, all Negroes, testified that their attention was attracted to the scuffle in the front part of the store with Duron; that they saw Duron shoving and abusing the appellant; and that at no time did they see any knife in the appellant's hand, nor did they hear any conversation by any person or persons there present to the effect that the appellant had a knife in his hand. The defendant testified that the articles of merchandise taken from him by Duron were purchased elsewhere. Lastly, defendant's witness, Nellie Perkins, testified that Duron assaulted the defendant without any provocation whatsoever at the time of re-entering the store. This constitutes in main the defense testimony.
Appellant's assignments of error are to the effect that the trial court erred in denying defendant's motion for a new trial based on the ground of newly discovered evidence supported by affidavits not controverted by the state.
Appellant's proposition of law is to the effect that where affidavits are filed which [77 Ariz. 48] contain recitals of newly discovered evidence, not controverted by the state, and are of such a nature that had the jury had the advantage of the new facts in all probability a different result would have been reached, then under such circumstances the denial of a new trial constitutes an abuse of judicial discretion.
That the state should have filed counter-affidavits is the accepted practice. Yet an examination of the record discloses that appellant failed to incorporate in his motion for a new trial any facts tending to show that he could not with reasonable diligence have discovered the claimed new evidence before trial. It is a well-grounded rule in this jurisdiction that a new trial should be denied when sought on the ground of newly discovered evidence where it appears that the same could have been discovered with reasonable diligence. Talley v. State, 18 Ariz. 309, 322, 159 P. 59; Post v. State, 41 Ariz. 23, 15 P.2d 246; Hunter v. State, 43 Ariz. 269, 30 P.2d 499; Rosser v. State, 45 Ariz. 264, 42 P.2d 613; Cochrane v. State, 48 Ariz. 124, 59 P.2d 658; Hoy v. State, 53 Ariz. 440, 90 P.2d 623.
Our statute, section 44-2004(c), A.C.A.1939, provides that the court shall grant a new trial when new evidence is discovered material to the case, which could not with reasonable diligence have been discovered and produced at the trial, and
the defendant produces at the hearing of the motion the affidavit of witnesses by whom such evidence is expected to be given.
Defendant's counsel relies upon the generally accepted rule that newly discovered evidence, even though cumulative, if material and of such weight as most likely would have changed the result of the trial had it been given, entitled the defendant to a new trial provided due diligence is shown. In this connection, in an examination of the affidavit of Alice Siders upon which defendant relies in support of the motion we find this statement:
'* * * that thereupon the Negro (defendant) made a motion or gesture with one of his hands as if he would attempt to reach into his pocket, and this affiant believes that the said Negro did actually reach into his pocket with his left hand, that she then became very much concerned and thought he would, undoubtedly, pull a knife or some other instrument from his pocket, and she thereupon, made special observation of said Negro's hands and saw both hands after he had made the aforesaid gesture, ...