[85 Ariz. 50] Robert Morrison, Atty. Gen., Charles C. Stidham, County Atty., Lawrence C. Cantor, Deputy County Atty., Phoenix, for appellant.
Flynn & Allen, Phoenix, for appellee.
UDALL, Chief Justice.
This is an appeal by the State of Arizona, in a criminal case, from an order of the superior court granting Arthur Ray Hill's (defendant-appellee's) motion for a new trial.
By an information containing two counts the State charged defendant with (1) murder in the first degree of one Harold Joseph Kline, (2) assault with intent to commit murder on the person of Estel Cummings. The matters were jointly tried to a jury and on September 19, 1957, verdicts were rendered finding defendant guilty on count No. 1 of murder in the second degree, and guilty as charged on the second count.
In all the defendant filed three separate motions asking for a new trial, which may be summarized as follows:
The first motion was filed September 26, 1957 (seven days after the verdicts) upon the following statutory grounds: (1) misconduct of the county attorney in the prosecution of the action, (2) that the court had erred in its rulings upon matters of law arising during the course of the trial, and (3), the jury had been misdirected as to the law governing the case.
The second motion, in substance, was based upon the grounds of asserted newly-discovered evidence.
The last motion in effect supplements the first one, i. e., the grounds stated are that defendant did not receive a fair and impartial trial due to no fault of his own. Affidavits were filed both in support of and in opposition to said motions and an effort was made by defendant to excuse the delay in filing.
The pertinent Rules of Criminal Procedure, Chapter XVIII, under the hearing Motion for New Trial, 17 A.R.S., are:
[85 Ariz. 51] 'Rule 307. Granting new trial
'When a verdict has been rendered against the defendant, or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion with the consent of the defendant, may grant a new trial.'
'Rule 308. Time for making motion
'A motion for a new trial may be made only within three days after the rendition of the verdict or the finding of the court, unless the ground of the motion is newly discovered evidence as provided in Rule 310, in which event the motion may be made within one year after the rendition of the verdict or the finding of the court, or at a later time if the court for good cause permits.'
'Rule 311. Grounds for new trial involving prejudice of substantial rights of defendant
'A. The court shall grant a new trial if any of the following grounds is established, provided the substantial rights of the ...