[88 Ariz. 34] Flynn & Allen, Phoenix, for appellant.
[88 Ariz. 35] Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Charles C.
Stidham, County Atty., Phoenix, for appellee.
STRUCKMEYER, Chief Justice.
On the 19th day of September, 1957, defendant Arthur Ray Hill, was found guilty of murder in the second degree (Count 1) and assault with intent to commit murder (Count 2). Thereafter, defendant filed three separate motions for a new trial in the following sequence: the first on the 26th day of September, 1957; the second on the 1st day of October, 1957; and the third on the 4th day of October, 1957. The court below, in passing on the motions, ordered a new trial in this language:
'It is ordered that the Motion for a new Trial be and the same is hereby granted on the grounds that the substantial rights of the defendant having been prejudiced and misconduct of the County Attorney in putting certain impeaching questions on cross-examination to the defendant and failure thereafter to follow up and support the impeaching questions.'
It is clear from the contents of the order that the lower court granted defendant's first and third motions for a new trial, and that it neither granted nor denied defendant's second motion for a new trial for the reason that the order is addressed solely to the grounds specified in the first and third motions. The grounds specified in the second motion was newly discovered evidence; hence, insofar as the record here is concerned, no order to the time of the first appeal, State v. Hill, 85 Ariz. 49, 330 P.2d 1088, 1089, was made regarding it.
The State appealed from the order granting the motion for a new trial, stating in its brief that 'The Court did not grant this motion [the second motion] upon newly discovered evidence, therefore the first motion is the only motion we are arguing.' We stated in the opinion, State v. Hill, supra, 'Inasmuch as the trial court apparently took no stock in the second motion--based upon newly discovered evidence--and did not predicate its ruling thereon [see, infra], we need not further consider it.' In disposing of the first and third motions, we held that since Rule 308, Rules of Criminal Procedure, 17 A.R.S., provides that motions for a new trial must be made within three days after the rendition of the jury's verdict, the court below was without jurisdiction to order a new trial, and directed that the verdict of the jury be reinstated.
Following our opinion and on return to the lower court, defendant renewed his second motion for a new trial based upon newly discovered evidence. It was denied. This appeal is from the judgment and sentence[88 Ariz. 36] thereon and from the order denying defendant's second motion for a new trial on the grounds of newly discovered evidence. Rule 308, Rules of Criminal Procedure, specifically exempts a motion for a new trial on the grounds of newly discovered evidence from the operation of the three-day rule, providing that it '* * * 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.'
It is plain from the foregoing that the defendant, by reason of the exception contained within Rule 308, could move for a new trial based on newly discovered evidence some forty days after the rendition of the jury's verdict (being within the one-year period), and that the court below had jurisdiction to entertain the motion and was compelled to pass thereon by either granting or denying it. It is also plain that the former appeal did not embrace the questions raised by this appeal since counsel neither presented or argued nor did this court consider (for it could not have) the questions raised by the subsequent denial of defendant's second motion based on newly discovered evidence. In the instant appeal, we address ourselves solely to the
grounds raised in the second motion based on newly discovered evidence.
The case was in this condition at the time defendant presented the motion. On December 24, 1956, he owned and managed a rooming house at 357 North Third Avenue, Phoenix, Arizona. His home was at 363 North Third Avenue, approximately 100 feet from the rooming house. About 5:16 o'clock in the afternoon of that day, a tenant at the rooming house came to defendant's home and told him that another tenant by the name of Estel Cummings and a third person by the name of Kline were drinking, fighting, and 'tearing the place apart.' There had been some previous trouble between defendant and Cummings over the payment of rent.
Defendant, then a man 73 years of age, was in poor physical health. He testified that he went to the rooming house and found broken glass in the lavatory and 'commode' in the bathroom, and that the lavatory was pulled away from the wall. After making some attempt to clean up, he returned to his home and thereafter went back to the rooming house to remonstrate with Cummings, first arming himself with a gun because of his physical infirmities and the drunkenness of the tenant. When defendant arrived at Cummings' room, a quarrel took place and he shot in self-defense. Kline died. Cummings survived. It is to be observed at this point that if the jury believed defendant, as an elderly, infirm man armed with a gun solely for self-protection, first in defense of his person and in resisting aggression, a verdict of not guilty was warranted.
[88 Ariz. 37] It is the State's position, established primarily through the testimony of Cummings, that defendant, after examining the damage in the bathroom, went to the room of the tenant Cummings where an altercation took place, and then returned to his house, came back with a gun and shot Cummings and his companion Kline. This testimony, if believed, would of course justify the verdicts as returned.
Some hours after the homicide, defendant was interrogated by a deputy county attorney in the presence of a shorthand reporter. At that time a detailed statement was taken concerning what had occurred, but no reference was made to a visit to Cummings' room before obtaining the gun except for the question and answer set forth verbatim, infra. The reporter's notes were subsequently typewritten, and at the trial were used to impeach defendant's testimony that there had been no previous ...