[85 Ariz. 70] Duecy, Moore & Jacobowitz, Phoenix, for appellant.
Robert Morrison, Atty. Gen., Charles C. Stidham, County Atty., and Jarrett S. Jarvis, Deputy County Atty., Phoenix, for appellee.
UDALL, Chief Justice.
Eugene Milton, defendant-appellant, was informed against, tried and convicted by a [85 Ariz. 71] jury of the crime of illegal possession and sale of narcotic durg a felony (A.R.S § 36-1002). After denial of his motions for a new trial and in arrest of judgment, the court pronounced judgment and as punishment sentenced defendant to serve not less than five nor more than six years in the state penitentiary. Defendant has appealed from the judgment of conviction. The parties will be referred to as they were in the trial court, viz., the State, and defendant.
It should be noted that the criminal prosecution in this matter was commenced
before a committing magistrate by the filing of a criminal complaint signed by Alfred J. Jordan on November 25, 1957; preliminary hearing was waived by defendant; and he was held to answer to the superior court on December 3, 1957.
There are but two assignments of error, the first and principal one being:
'The court erred in denying appellant's motion for a new trial upon the ground that the verdict was not justified, and was contrary to the evidence.'
A supporting proposition of law reads:
'When the conclusion of a jury is physically impossible or reasonably incredible on the evidence adduced, the court is obliged to set aside the verdict as contrary to the weight of the evidence.'
The factual basis giving rise to this assignment is that there is a direct conflict in the testimony of the complaining witness as to the time element. Alfred J. Jordan, a special employee of the narcotic division of the State Liquor Department (who as an undercover man purportedly made the 'buy' of twelve marijuana cigarettes from defendant), testified at the trial on direct examination that he made the purchase on November 11, 1957, whereas on cross-examination he became confused and flatly testified that he first met the defendant on November 25, 1957 and that the 'buy' was made on December 11, 1957. The record discloses that this latter statement was physically impossible because on this last-mentioned date the defendant was languishing in the Maricopa County jail, where he had been incarcerated since November 29, 1957.
The defendant contends that the evidence is such that it is susceptible of but one interpretation, and that reasonable men could come to but one conclusion, i. e., that defendant was not guilty of the offense charged. To arrive at this result defendant necessarily ignores the over-all testimony, not only of the witness Jordan but the other evidence adduced by the State. None of the reported decisions cited by defendant support such a narrow view.
We believe that the true rule is succinctly stated in 32 C.J.S. Evidence § [85 Ariz. 72] 1031, from which we quote the pertinent part:
'a. In General
'In determining the weight of the evidence or its effect in inducing belief, consideration should be given to all of the evidence, its reasonableness in view of surrounding circumstances and inherent probabilities, the existence or lack of corroboration, the accuracy and truthfulness of the witness, and all attendant and relevant facts accompanying the admission of the evidence; and ...