State v. Thomas, 1045-1072
| Decision Date | 28 June 1955 |
| Docket Number | No. 1045-1072,1045-1072 |
| Citation | 79 Ariz. 158,285 P.2d 612 |
| Parties | STATE of Arizona, Appellee, v. Arthur THOMAS, Appellant. |
| Court | Arizona Supreme Court |
W. Edward Morgan, Tucson, I. B. Tomlinson, Bisbee, for appellant.
Robert Morrison, Atty. Gen., L. Alton Riggs, Sp. Asst. Atty. Gen., Wes E. Polley, Bisbee, Cochise County Atty., for appellee.
This appeal is prosecuted by defendant from an order of the trial court denying defendant's motion for a new trial based upon newly discovered evidence.
Defendant was convicted of murder in the first degree on June 19, 1953, and in accordance with the jury's verdict a judgment and sentence of death was imposed. On an appeal therefrom we affirmed the judgment and fixed a new date for the execution. State v. Thomas, 78 Ariz. 52, 275 P.2d 408. The motion for a new trial, here involved, was filed on December 2, 1954, under the provisions of Rules Cr. Proc. 357(c) (section 44-2004(c), A.C.A.1939). On the same day defendant filed a petition with the trial court for permission to examine a certain pair of white canvas gloves introduced in evidence at the trial as gloves worn by defendant on the night of the murder. The gloves were bloody and three fingers of the right glove were cut at a point which corresponded with cuts on defendant's same three fingers. The examination of the gloves was sought for the purpose of having the examining expert test the blood to ascertain whether there were present in it 'antibodies of certain febrile groups' against which defendant as a member of the armed forces had been immunized by vaccination during the war. The petition was denied. Assuming but not deciding that the order denying the petition is appealable, no appeal was taken therefrom. Therefore the correctness of the ruling of the trial court on that question is not before us.
Certainly such petition constitutes no part of the motion for a new trial which must necessarily be based on newly discovered evidence. The petition was designed to discover new evidence upon which to base the motion for a new trial but until such new evidence was discovered it formed no basis for a motion for a new trial. It would be utter folly to grant a new trial upon claimed evidence which does not now exist and may never come into existence. This disposes of applicant's assignment of error No. 2.
He contended in assignment No. 1 that the court erred in ruling that defendant's statement made while under the influence of sodium amytal 'was not new and additional evidence under the statute.' Counsel forthrightly admits that he has found no case which sustains his position but that all cases hold to the contrary. He points out that in People v. Jones, 42 Cal.2d 219, 266 P.2d 38, while the court refused to admit the statements of the defendant made while under the influence of sodium amytal, it did say that the psychiatrist who observed him while under the influence of sodium amytal should have been permitted to testify as an expert and to state on what basis he reached his conclusion. This is in harmony with the other reported cases in that in no case was the statement of defendant while under such influence admitted in evidence.
Some of the grounds upon which this kind of evidence is rejected are:
'* * * that the statements to be produced would be hearsay, self-serving, and conjectural since the truth thereof would depend entirely on the psychiatrist's opinion which conceivably might conflict with the opinion of another psychiatrist.' People v. Cullen, 37 Cal.2d 614, 234 P.2d 1, 8.
Other cases base it upon the proposition that it is not yet...
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State v. Cypher
...v. Ford, 304 N.Y. 679, 107 N.E.2d 595 (1952); Lindsey v. United States, 237 F.2d 893, 16 Alaska 268 (9th Cir. 1956); State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. den. 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828; Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292 (1......
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State v. Pitts
...439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978); Chapa v. Chapa, 491 So.2d 969, 970-71 (Ala.Civ.App.1986); State v. Thomas, 79 Ariz. 158, 285 P.2d 612, 613-14 (Sup.Ct.1955), cert. denied, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828 (1956); Fetters v. State, 436 A.2d 796, 800 (Sup.Ct.Del.198......
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State v. Jeffers, 4253
...was consistent with appellant's innocence. While sodium amytal evidence is not admissible in Arizona courts, see State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. denied, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828 (1956), mitigation evidence presented under Arizona's death penalty st......
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State v. Howerton
...to have attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. See, e.g., State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. denied, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828 (1956); People v. Johnson, 32 Cal.App.3d 988, 109 Cal.Rptr. 118 ......