Johnson & Rogers, Phoenix, for appellant.
Ross F. Jones, Atty. Gen., and William T. Birmingham, Asst. to Atty. Gen., for appellee.
Defendant, Loreto O. Romero, a Mexican national, was charged in the Superior Court of Maricopa County with the crime of assault with a deadly weapon, and after trial to a jury and a verdict returned against him he was sentenced to not less than three nor more than five years in the state penitentiary. From the judgment and order denying a motion for new trial on grounds of newly-discovered evidence, defendant appeals.
The record shows an information against the defendant was filed July 2, 1953, and upon his arraignment on July 6th the court appointed Arthur Johnson as his counsel, and this attorney with commendable zeal has prosecuted this appeal. Before the committing magistrate the defendant was not represented by counsel and waived a preliminary hearing. On August 14th the cause came on for trial. The State called Ray Costello, the person upon whom the [77 Ariz. 230] alleged assault was made. He testified that he lived in a room behind the Obrera Pool Hall and got 'home' about 5:30 p. m. the evening of June 22, 1953; that about six o'clock he saw defendant arguing with an old man and that defendant was 'a little drunk', abusive and using very bad language; Costello told defendant to leave the old man alone; defendant then left the old man, came to Costello and put his arm on Costello's shoulder; Costello pushed defendant away, 'then Manuel Lopez got between us, and that was when he pulled out the knife and cut me.'; then Costello picked up a cue stick and struck Romero a couple of blows.
On cross-examination it was elicited for that first time that the name of the old man was 'Jose'. The court then recessed for lunch, and upon reconvening and upon redirect examination it was brought out that the old man's name was 'Jose Verelas'. Later it developed that his true name was Jose Parella. Neither name appeared anywhere on the list of witnesses.
The State then called Manuel Lopez who testified that he was proprietor of the pool hall, that on the day in question defendant was there present and was abusing an old man; the old man left, then defendant came to the rear of the pool hall, put his arm around Costello and an argument ensued; the argument grew more violent, Lopez turned his back and started to walk away and the fight started; when Lopez turned around Costello had been cut and Romero had a knife in his hand.
Defendant then took the stand in his own behalf. He testified that he had been injured by a steam shovel blow on his right hip in 1942, and that the area there was still tender and painful; that on the afternoon in question he came to the pool hall, laid down and went to sleep; that when he awoke $5 was missing from his pants' pocket. He asked Manuel Lopez who had been in defendant's pockets and Lopez denied any knowledge of this alleged theft. Defendant denied arguing with or talking to Costello but instead said he was talking with other people when Costello made an unprovoked attack upon him with a pool cue, first hitting him on the head and knocking him to the floor, then striking him and beating him while he was down; more particularly, some of the blows landed upon the tender area of defendant's hip; defendant in self-defense then drew a knife and
stabbed Costello. Defendant further testified that he then left for home, stopping at a tavern on the way, and that the following day he visited the county clinic and got X-rays of his hip.
No other witness was called on behalf of defendant, and after the instructions the jury returned a verdict of guilty. A motion for a new trial was then made, as follows:
'Comes Now The Defendant in the above-styled and numbered criminal action by his attorney and moves the [77 Ariz. 231] Honorable Court to grant said defendant a new trial, on the ground and for the reason that defendant's attorney has discovered new and material evidence which, it is submitted, will render a different verdict reasonably probable upon a retrial, the said newly discovered evidence being such as could not have been discovered and produced at defendant's first trial with reasonable diligence, as more fully appears from the attached affidavits which are made a part of this Motion.
'If it be the opinion of the Honorable Court that the attached affidavits do not sufficiently satisfy the Court of the truth and substance of the said newly discovered evidence therein contained, then in that event the defendant hereby petitions the Court to postpone its ruling on this Motion until such time as the Court may subpoena and bring before it, and examine those persons named in the attached affidavits and whom, in the opinion of the Court, should be examined so as to effect the proper administration of justice and secure to this defendant his constitutional and statutory rights.'
In support of the motion for new trial there was filed the following affidavit by Arthur ...