State v. Bogard
| Decision Date | 17 August 1960 |
| Docket Number | No. 1168,1168 |
| Citation | 88 Ariz. 244,354 P.2d 862 |
| Parties | STATE of Arizona, Appellant, v. Eugene D. BOGARD, Appellee. |
| Court | Arizona Supreme Court |
Wade Church, Atty. Gen., H. Earl Rogge, Jr., Sp. Deputy County Atty., Harry Ackerman, County Atty., Pima County, and John L. Claborne, Deputy County Atty., Tucson, for appellant.
Boyle, Bilby, Thompson & Shoenhair, Tucson, B. G. Thompson and Richard B. Evans, Tucson, of counsel, for appellee.
Appellee, Eugene D. Bogard was indicted by the Pima County Grand Jury on three counts of bribery in violation of A.R.S. § 13-283. He was tried by a jury and found guilty on all three counts as charged. Appellee then made a motion for a new trial which was granted by the presiding judge. This appeal is taken by the State of Arizona from that order.
The grounds for the order for new trial, as stated by the trial judge, were: (1) that the evidence did not sustain the verdict in that the State failed to prove appellee's corrupt intent, and (2) that the appellee did not receive a fair and impartial trial because the extensive publicity by the press, radio and television influenced the jury's verdict. Although there are six separate assignments of error set out by the appellant, there is only one question of law to be decided by this court. Did the trial judge abuse his discretion in granting appellee a new trial after he was convicted by the jury?
The pertinent sections of the Rules of Criminal Procedure, 17 A.R.S., as applicable to this question, are:
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The general rule, in regard to an appeal from an order granting or denying a new trial in a criminal case, is that the matter is largely discretionary with the trial court. Its decision will not be reversed by this court unless it appears affirmatively that there has been an abuse of discretion.
It must be exercised in a legal and not arbitrary manner. State v. Chase, 78 Ariz. 240, 278 P.2d 423; State v. White, 56 Ariz. 189, 106 P.2d 508; State v. Duguid, 50 Ariz. 276, 72 P.2d 435. We must therefore examine the record to ascertain whether the trial court did abuse its discretion in granting a new trial on either of the grounds set forth, for if it was correct on one, the fact that it was incorrect on the other is immaterial.
The first ground is that the evidence did not sustain the verdict in that the State failed to prove a corrupt intent. The evidence showed that the appellee owned Bogard GMC, Inc., and was engaged in selling and leasing trucks, in the general area of Pima County, through a series of corporations that he controlled; that through his leasing corporations, he leased a new passenger car in each of the years 1953, 1954, 1955, 1957 and 1959 to Lambert Kautenburger, Chairman of the Pima County Board of Supervisors. The three counts in the indictment are concerned respectively with 1955, 1957, and 1959 Oldsmobiles which were leased by appellee to Kautenburger. Under the terms of the lease agreements, the only payments required of Kautenburger were the amounts which he would receive from mileage claims while on county business; there was to be no payment for Kautenburger's private use of the automobiles. Kautenburger testified at the trial that he used the vehicles approximately 30% for his private use. It further appeared that appellee's business enterprises were doing business with the Board of Supervisors of Pima County during the period of time covered by these three car lease agreements. The State maintained that the appellee made the car-lease contracts with Kautenburger as an inducement and bribe to secure special consideration in the appellee's sale of equipment to Pima County.
The evidence for the appellee showed that with the money paid in by Kautenburger under the lease contracts and with the money realized from the sale of each of the automobiles upon the termination of the leases, appellee actually made a profit on all three vehicles. Appellee's position was that he gave no special favor to Kautenburger by leasing the three vehicles, but rather he simply made a business deal which returned him a profit in each instance. It should be emphasized that there was nothing in the evidence to directly link the leasing of any of the three vehicles to a granting by the Pima County Board of Supervisors of any special consideration to appellee's other business dealings.
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State v. Robinson
...the sound discretion of the trial court and will not be disturbed by this court unless an abuse of discretion exists. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Chase, 78 Ariz. 240, 278 P.2d 423; McDaniels v. State, supra. In view of what we have said above, we find no abuse of d......
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State v. Turner, 1230
...appears that there has been an abuse of discretion. It must be exercised in a legal and not arbitrary manner. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Chase, 78 Ariz. 240, 278 P.2d 423; State v. White, 56 Ariz. 189, 106 P.2d 508; State v. Duguid, 50 Ariz. 276, 72 P.2d It has be......
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State v. Blankenship, 1469
...not be grounds for reversal unless it appears affirmatively that the court abused its discretion, and acted arbitrarily. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Turner, 92 Ariz. 214, 375 P.2d 567; Morgan v. United States, 301 F.2d 272 (9th Cir., Ariz., 1962). A motion for new ......
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Gillespie Land & Irr. Co. v. Gonzalez
...the reason that the verdict is not justified by the evidence, Caldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266 (1962); State v. Bogard, 88 Ariz. 244, 354 P.2d 862 (1960). If, however, it is clear that the trial judge granted the new trial because of a misapprehension or mistake of law, this ......