[88 Ariz. 155] Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Harry Ackerman, County Atty., Pima County, John L. Claborne, Deputy County Atty., Tucson, for appellant.
Richard J. Dowdall, Tucson, for appellee.
The State appeals from an order setting aside a jury verdict which found defendant guilty of burglary in the first degree and granting defendant a new trial. The order was based on three grounds: that the verdict was contrary to the weight of the evidence; that new and material evidence was discovered after the trial; and that the court erred in refusing defendant's request to examine certain notes prepared by a witness for the State. The State assigns each of the above grounds as error.
With respect to the first ground, Rule 310 of the Rules of Criminal Procedure, 17 A.R.S. provides that the trial court shall grant a new trial if 'the verdict is contrary to * * * the weight of the evidence.' The initial question presented is the scope of this Court's review of an order granting a new trial on that ground.
The rules applicable to review of a civil proceeding have recently been set forth by this Court in Pima County v. Bilby, 87 Ariz. 366, 351 P.2d 647. There it was stated (351 P.2d at page 653):
'In ruling on the motion for a new trial, however, 'the trial court may weigh the evidence' (General Petroleum Corp. v. Barker, supra, 77 Ariz. at page 244, 269 P.2d at page 735) and 'unless a clear preponderance of the evidence shows that the verdict is just, the trial judge may in the exercise of his discretion grant a new trial' (Bradley v. Philhower, supra, 81 Ariz. at page 63, 299 P.2d at page 649.)'
The Court there also quoted with approval the following statement from Smith v. Moroney, 79 Ariz. 35, 39, 282 P.2d 470, 472:
"We will not disturb an order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court's action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion" (351 P.2d at page 653).
This test is in accord with the rule appelied in criminal proceedings. In State v. Chase, 78 Ariz. 240, 244, 245, 278 P.2d [88 Ariz. 156] 423, 426, the Court stated that 'the trial judge was justified in finding that it [the
evidence of premeditation and deliberation in a first degree murder prosecution] falls short of establishing their existence beyond a reasonable doubt,' and held:
'The trial judge had the right to weigh the evidence and it is our view that he did not abuse his discretion in granting the motion for a new trial.'
In State v. Duguid, 50 Ariz. 276, 72 P.2d 435, this Court held that an order granting a new trial on several grounds, including one that the verdict was contrary to the evidence, was in error for the reason, among others, that
'the evidence of guilt being so conclusive, we see no reason upon which to base the order for a new trial.' 50 Ariz. at page 284, 72 P.2d at page 439.
Thus, the scope of review of an order granting a new trial is essentially the same in both civil and criminal proceedings, taking into consideration the differences in the applicable burdens of proof. In a civil case, where the plaintiff has the burden to prove his case by a preponderance of the evidence, the trial court may properly grant a new trial provided that the 'probative force of the evidence does not clearly preponderate in favor of the verdict' (Pima County v. Bilby, supra, 351 P.2d at page 653). In a criminal proceeding, on the other hand, where the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt, the trial court does not abuse its discretion in granting ...