State v. Schantz, 1701
| Decision Date | 11 May 1967 |
| Docket Number | No. 1701,1701 |
| Citation | 427 P.2d 530,102 Ariz. 212 |
| Parties | STATE of Arizona, Appellee, v. Joseph Alvin SCHANTZ, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Paul G. Rosenblatt, Asst. Atty. Gen., for appellee.
Lewis, Roca, Scoville, Beauchamp & Linton, John J. Flynn, James Moeller, Phoenix, for appellant.
Appellant appeals from an order denying him a new trial on grounds of newly discovered evidence.
He was charged with the first degree murder of his wife. Following trial the court granted a directed verdict of not guilty as to first degree murder, and sent the case to the jury on all remaining issues. Appellant appealed to this court his conviction of second degree murder. We affirmed the judgment, 98 Ariz. 200, 403 P.2d 521 (1965). The United States Supreme Court denied certiorari, Schantz v. Arizona, 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed. 530 (January 24, 1966).
This appeal is before us from an order denying appellant a new trial requested under the authority of Rule 310, Rules of Criminal Procedure, 17 A.R.S.:
'The court shall grant a new trial if any of the following grounds is established:
* * * 3. That new and material evidence, which if introduced at the trial would probably have changed the verdict or the finding of the court, is discovered which the defendant could not with reasonable diligence have discovered and produced upon the trial.'
The express question presented for review is succinctly stated by appellant as follows:
'Where the issues in a murder case include questions of self-defense, provocation by the deceased, and sudden quarrel or heat of passion, and where the one independent witness with cogent material evidence strongly tending to show that these defenses are applicable is unavailable to defendant despite due diligence because the witness is intimidated by threats of death and flees the jurisdiction and remains silent, should the defendant be granted a new trial when he finally succeeds in discovering and producing such evidence?'
The motion for new trial is supported by the affidavits of Mrs. Olive Cooley, once a neighbor of the Schantzes; appellant's attorney and the appellant himself. Mrs. Cooley's affidavit relates that in years past Matilda Schantz had constantly tormented and provoked Mr. Schantz, and that on several occasions, in the presence of both affiant and her daughter, she had threatened Mr. Schantz with a butcher knife, that approximately one year before the death of Matilda Schantz, affiant married Mr. Cooley who turned out to be extremely jealous and who constantly accused male acquaintances, including the appellant, of having affairs with his wife; that after their marriage the Cooleys moved to Arkansas, but returned to Phoenix in the spring of 1962 to settle some business affairs; that during the several days they were in a Phoenix motel Mr. Cooley, who was constantly intoxicated, again accused affiant of having had an affair with appellant; that Mr. Cooley then began making a series of calls to Mrs. Schantz, the last of which was about 10:30 or 11:00 on the night of Matilda Schantz' death; that affiant heard Mr. Cooley tell Mrs. Schantz 'that if she didn't get rid of her husband because of his affair with (affiant), he himself would kill him;' that shortly thereafter matters became so intolerable that Mrs. Cooley left the motel and drove to another motel to spend the night; that after returning to the motel the following morning police came and inquired as to a phone call to the Schantz residence the night before and were advised by the affiant of her husband's call to Mrs. Schantz between 10:30 and 11:00; that police advised affiant Mrs. Schantz had been murdered and that Mr. Schantz was in custody.
The affidavit continues that Mr. Cooley returned to the motel after the police left, still intoxicated, and accused his wife of being involved with the Schantzes in causing her death and insisted they leave town to avoid further involvement. When Mrs. Cooley said she wanted to help Mr. Schantz, Mr. Cooley 'threatened my life if I dared go near the police department and insisted that we leave immediately which we did.'
The affidavit further shows that Mr. Cooley died in Arkansas in October 1963, that affiant returned to Phoenix in April or May of 1964 and contacted the appellant who then stood convicted but who was free on bond pending appeal and offered to help him.
The affidavits of appellant and his attorney relate to the question of diligence on their part, a matter which is not now questioned by the state.
The appellant contends that the evidence contained in the affidavit of Mrs. Cooley goes to these important and critical issues: Was the...
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