State v. Peters, Criminal 916
| Decision Date | 07 December 1942 |
| Docket Number | Criminal 916 |
| Citation | 131 P.2d 814,60 Ariz. 102 |
| Parties | STATE OF ARIZONA, Appellee, v. DONALD PETERS and HERB BECHTEL, Appellants |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Mr. Richard Harless, County Attorney, and Mr. Darrel Parker, Deputy County Attorney, for Appellee.
Mr. L J. Cox and Mr. Geo. T. Wilson, for Appellants.
On May 24, 1941, Donald Peters and Herb Bechtel, defendants together with one Clarence Hammons, were jointly informed against by the county attorney of Maricopa County for the crime of burglary. No demand was made for a severance, but when the case was called for trial, Hammons withdrew his plea of not guilty theretofore entered, and pleaded guilty and the matter went to trial before a jury as against defendants alone. They were found guilty as charged by the jury and were sentenced, respectively, to serve terms in the state prison. After the usual motion for new trial was made and overruled, this appeal was taken.
There are two assignments of error. The first is that the court erred in denying the motion for new trial made on the ground there was newly discovered evidence which was not available to defendants at the trial, and which was such as to render a different verdict reasonably probable upon a new trial, and the additional ground that the confession and testimony of Hammons was not supported by any credible evidence.
The second assignment is that the court erred in not permitting counsel for defendants to cross examine Hammons in regard to certain matters.
The first question is as to the newly discovered evidence. The situation presented by the record on this point is decidedly unusual. The motion for new trial set up, among others, the following ground:
In support of No. 12 three affidavits were filed. The first was by one Robert Galloway going to alleged misconduct of the jury. This we need not consider for the reason that the particular misconduct shown by the affidavit was not assigned as one of the grounds of the motion for new trial.
The other two affidavits by Wayne Custer and Marie Cook are as to impeaching statements made before her testimony under oath by Dorris Hammons, one of the witnesses used by the state in rebuttal. Testimony of this nature usually does not justify a new trial. Indian Fred v. State, 36 Ariz. 48, 282 P. 930.
There were also two unverified statements. One was by Joe Hammons, one of the witnesses at the trial, in which he stated that certain of the testimony which he gave at the trial was untrue, and, in substance, that he had been induced to give his testimony as a result of certain threats and promises made to him by a deputy sheriff. There was also a statement by one of defendants' counsel, in which he said he had been shown a confession made by Hammons to another burglary, in which confession he was asked if he had any statement to make in regard to other robberies, and he replied he had none. This statement further said the attorney had been informed by one of the officials of Pinal County that Hammons had made oral confessions to many burglaries, but the details he gave did not fit in with some of the actual facts of the burglaries, and that Hammons had afterwards repudiated this oral statement. In none of these statements did Hammons refer to the burglary charged in the present case.
There was also a statement by a fingerprint expert that, in his opinion, the fingerprints which played a large part in the trial were not those of Bechtel, one of the defendants.
None of these statements were under oath, nor was there an affidavit that any witness would, at a new trial, testify to the facts contained in the statements. Such statements, under the old statute, section 5097, Revised Code 1928, were not sufficient to justify a new trial. Rosser v. State, 45 Ariz. 264, 42 P.2d 613. And while section 44-2004, Arizona Code 1939, which was in effect when the motion for new trial was made, does not expressly require supporting affidavits, yet we think the showing made was of such a nature that we cannot say the court was not justified in denying the motion made on the ground of newly discovered evidence.
The notice of appeal was given on July 2, 1941, and the record transmitted to and filed in this court on October 18 of the same year. On February 11, 1942, an amended motion for new trial on the ground of newly discovered evidence was filed in the superior court. Supporting it was unverified statement by Hammons to the effect that he was not with defendants the night of the burglary with which they were charged; an affidavit by Hammons made a few days after the statement to the effect that he was with them at the commission of the burglary; an affidavit by one Truman Carr, who testified for defendants, to the effect that Hammons could not have been present at the time of the burglary because he was with the affiant that night on another robbery at a different place, in which affidavit the witness repudiated his testimony that Hammons was with him the night of the Tempe burglary, and an affidavit by Joe Hammons in which he repudiated the statement he made in support of the original motion for new trial, and said that his testimony given at the trial was true.
When the supplemental motion for new trial was filed in the superior court on February 11, the appeal had already been perfected and the superior court had lost jurisdiction of the case for all purposes except such as were in furtherance of the appeal. Gotthelf v. Fickett, 37 Ariz. 322, 413, 294 P. 837. We think a new motion for new trial asking the court to make an order which, if valid, would have taken the appeal out of the jurisdiction of this court and remanded it to the superior court, could hardly be considered in furtherance of the appeal, and the trial court very properly refused to consider it. However, the motion and affidavits supporting it were sent up by the clerk for such action as we might think proper.
It is a fundamental rule governing criminal appeals that we can consider only the record on the case as it was presented to the trial court, for obviously it would be unfair to that court to reverse its action on account of matters which it did not have properly submitted to it for consideration. Sam v. State, 33 Ariz. 383, 265 P. 609. We, therefore, cannot consider the additional motion and affidavits. However, we may say in passing that they are of such a contradictory nature that we think no court would be justified in considering them a ground for a new trial. There was certainly no error on the part of the trial court in denying the motion for new trial on the ground of newly discovered evidence.
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