Rosser v. State, Criminal 819

• Decision Date: 01 April 1935
• Docket Number: Criminal 819
• Parties: ORMAN S. ROSSER, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

42 P.2d 613

45 Ariz. 264

ORMAN S. ROSSER, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 819

Supreme Court of Arizona

April 1, 1935

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. judgment affirmed.

Mr Isaac Barth, for Appellant.

Mr John L. Sullivan, Attorney General, and Mr. Elmer C. Coker Assistant Attorney General, for the State.

OPINION

ROSS, J.

Appellant Rosser, was charged by information, filed by the county attorney of Yavapai county, with first degree murder, and upon his trial was found guilty of manslaughter. From a judgment of conviction he appeals.

His first complaint is of the order of the court denying his motion for a new trial, on the grounds of newly discovered evidence. This motion, which was supported by his affidavit only, is to the effect that Louis Hagin and Robert J. Dorrough were present and saw the trouble between defendant and deceased; that he did not subpoena them as his witnesses because the state had subpoenaed them; that, although they were present at the trial, the state did not use them and he did not use them because he did not know what they would testify to; that his attorney, shortly before the trial, went to see them, and when he was told by Hagin and Dorrough they had been subpoenaed by the state, he concluded it would be improper for him to interrogate them as to their knowledge, and therefore he did not ask them what they saw or knew of the trouble; that after the trial he learned through his attorney that the latter interviewed such persons and that their testimony would show he acted in self-defense, setting forth what such testimony would be.

Any evidence that was known by the defendant before his trial, or which might have been known by him in the exercise of ordinary care, is not newly discovered. By his own showing defendant knew the named persons were present at the time of the trouble. This was notice to defendant that they probably saw and heard what took place and should be witnesses. The defendant was entitled to a subpoena for their attendance, even though the state had subpoenaed them. Halderman v. Territory, 7 Ariz. 120, 60 P. 876. He would have violated no rule of ethics or law by interrogating them before the trial as to their knowledge. Presumably they would have told the truth, and, if his defense was honest and true, he would have run no risk in placing them on the stand, even though he had not interrogated them beforehand.

But, granting the testimony of Hagin and Dorrough is new evidence that could not have been discovered by reasonable diligence before the trial, their affidavits should have been produced at or before the hearing on the motion showing what their testimony would be and its materiality. This was not done.

For the reason that the showing was not of newly discovered evidence nor in conformity with subdivision 12, section 5097, Revised Code of 1928, the motion was properly denied.

Defendant assigns the giving of the following instruction as error:

"There is one rule of law, however, enacted by statute, to which I desire to call your attention: Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

"This burden cast by statute upon the defendant of proving mitigation, justification or excuse for the homicide, however, is only to the extent of raising in the minds of the jury a reasonable doubt as to whether the homicide was justifiable or excusable. In other words, it is rather a rule of procedure than one of substantive law."

for the following reasons: (1) Because it denied appellant his constitutional right to a fair trial and misled the jury, to appellant's prejudice; and (2d) it improperly placed the burden upon defendant to prove self-defense.

As the court stated in the instruction, it is taken from the statute (section 5050, Rev. Code 1928). It has been many times approved by this court. Halderman...