State v. Turner, 1230

• Decision Date: 18 October 1962
• Docket Number: No. 1230,1230
• Citation: 92 Ariz. 214,375 P.2d 567
• Parties: The STATE of Arizona, Appellant, v. Janis TURNER, Appellee.
• Court: Arizona Supreme Court

Page 567

375 P.2d 567

92 Ariz. 214

The STATE of Arizona, Appellant, v. Janis TURNER, Appellee.

No. 1230.

Supreme Court of Arizona, In Division.

Oct. 18, 1962.

Robert Pickrell, Atty. Gen., Harry Ackerman, former County Atty. of Pima County, and Jack I. Podret, present County Atty. for Pima County, for appellant.

Martin S. Rogers, Tucson, for appellee.

CASTRO, Superior Court Judge.

The State of Arizona appeals from an order of the Superior Court of Pima County granting the defendant Janis Turner a new trial. The pertinent matters for proper disposition of the issues involved are as follows:

Defendant was charged by information of having committed the crime of murder, second degree. Defendant was tried by a jury and on April 12, 1961 was convicted of manslaughter. On the same day, defendant filed a motion for a new trial based on Rule 310 of the Rules of Criminal Procedure, 17 A.R.S., to wit:

'that the verdict is contrary to law or the weight of the evidence'.

Other grounds were stated under Rule 311 of Rules of Criminal Procedure, 17 A.R.S., but were not considered by the trial court in its order granting a new trial. Therefore, it would not serve any purpose to consider these matters.

On May 29, 1961, defendant filed a supplemental motion for new trial pursuant to Rule 310(3) of the Rules of Criminal Procedure, 17 A.R.S. invoking the remedy of newly discovered evidence. Not only were affidavits attached to the motion, but on April 20-21, 1961 the trial court had the opportunity to examine the affidavits as well as listen to the testimony of witnesses. In fact some of the witnesses were interrogated by the Court. The learned trial judge in his order of June 29, 1961 granting a new trial discussed only two grounds, as follows: (1) that the verdict was contrary to the weight of the evidence; (2) newly discovered evidence.

The State assigned as error: (1) That the trial court erred and based its discretion in granting a new trial on evidence which was not admissible nor material. (2) That the trial court abused its discretion because the supposedly newly discovered evidence was cumulative in nature or merely for the purpose of impeachment or contradiction.

This leads us to an analysis of the nature of this action. It is apparent that the new trial was granted on one or both of the grounds stated in the order of June 29, 1961. If the motion was granted on either ground, the fact that it was incorrect on the other ground is immaterial. State v. White, 56 Ariz. 189, 106 P.2d 508. The general rule in this jurisdiction is that granting or denying a new trial is discretionary with the trial court and will not be reversed by this court unless it affirmatively 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 435.

It has been held many times by this Court that the trial court has the right in a criminal case to weigh the evidence in determining a motion for a new trial based on the grounds that the evidence did not sustain the verdict. State v. Bogard, 88 Ariz. 244, 354 P.2d 862; State v. Saenz, 88 Ariz. 154, 353 P.2d 1026; State v. Chase, supra.

Trial judges must be forever mindful in criminal cases that they have a greater duty than in civil cases to see that the trial is just. The verdict must be supported by proof beyond a reasonable doubt. State v. Bogard, supra. Furthermore, in the case of State v. Duguid, supra, this Court stated:

'* * * When the object in granting a new trial is to promote justice and protect the innocent, and the record so disclosed, the court's discretion is properly exercised. * * *' 50 Ariz. at 278, 72 P.2d at 436.

In State v. Saenz, 88 Ariz. 154, 353 P.2d 1026, this Court held:

'* * * [T]he scope of review of an order granting a new trial is essentially the same in both civil and criminal proceedings, taking into consideration the differences in the applicable burdens of proof. In a civil case, where the plaintiff has the burden to prove his case by a preponderance of the evidence, the trial court may properly grant a new trial provided that the 'probative force of the evidence does not clearly preponderate in favor of the verdict.' (Pima County v. Bilby, supra, 87 Ariz. 366, 351 P.2d 647). In a criminal proceeding, on the other hand, where the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt, the trial court does not abuse its discretion in granting defendant's motion for a new trial unless the record shows that his guilt has clearly been 'proved beyond a reasonable doubt'. (State v. Chase, supra.)' 88 Ariz. at 156, 353 P.2d at 1028.

In Caldwell v. Tremper, 90 Ariz. 241, 367 P.2d 266, the court cited Zevon v. Tennebaum, 73 Ariz. 281, 240 P.2d 548 and Sadler v. Arizona Flour Mills Company, 58 Ariz. 486, 121 P.2d 412, as follows:

'The granting of a new trial is different from an order refusing a new trial, for in the former the rights of the parties are never finally disposed of as in the latter they may be. The courts accordingly are more liberal in sustaining an order for a new trial than where it is denied. * * * We have quite definitely taken the stand that we will not reverse the trial court for granting a new trial where the evidence is conflicting.' 90 Ariz. at 246, 367 P.2d at 269.

Also the Court held in Brownell v. Freedman, 39 Ariz. 385, 6 P.2d 1115 as follows:

'It must be remembered that a very different rule applies to the setting aside of a verdict by the trial court on the ground that it is contrary to the weight of the evidence and to the same action taken by this court. We have invariably held that this court will not disturb a verdict on the ground that it is contrary to the weight of the evidence. On the other hand, we have held with equal emphasis that it is not only the right of the trial court to set it aside under such circumstances, but that it is its duty, and we have even gone so far as to express our regret that trial court did not more courageously and frequently exercise their prerogative in this respect. Dennis v. Stukey, 37 Ariz. 299, 294 P. 276.' 39 Ariz. at 389, 6 P.2d at 1116.

The following quotation from Smith v. Moroney, 79 Ariz. 35, 282 P.2d 470, has the approval of this Court:

'We will not disturb an order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court's action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion.' 79 Ariz. at 39, 282 P.2d at 472.

The second ground considered by the trial court in granting a new trial was the matter of newly discovered evidence. It might be well to consider the legal principles involved. It is largely in the discretion of the trial court whether a new trial upon the ground of newly discovered evidence shall be granted. State v. Love, 77 Ariz. 46, 266 P.2d 1079. Generally newly discovered evidence, even though cumulative, if material and of such weight as most likely would have changed the result of the trial had it been given, entitled defendant to a new trial provided due diligence is shown. Rule 310(3) Rules of Criminal Procedure, 17 A.R.S.; State v. Love, 77 Ariz. 46, 266 P.2d 1079; State v. Romero, 77 Ariz. 229 269 P.2d 724; Hunter v. State, 43 Ariz. 269, 30 P.2d 499.

Bearing in mind the decisions of this court heretofore mentioned and applying the principles enunciated herein to the facts of the case, we can proceed to dispose of the only legal issue of whether or not the trial court abused its discretion in granting a new trial. To properly dispose of the legal issues before us, it is imperative that the following facts be considered:

The defendant arrived in Tucson sometime in October, 1960 from Reno, Nevada. A short time later she met the deceased, Walter Livingston, who later for all purposes became her boy friend. The deceased became very possessive over the defendant and extremely jealous of her actions. The record indicates that they quarreled frequently; he on several times physically beat the defendant. The defendant testified that deceased was in the habit of carrying a knife and would threaten her with it. The defendant informed the deceased that she was calling the 'whole thing off'.

On January 5, 1961 the defendant visited some neighbors. She had occasion to walk to the door and saw the deceased standing in front of a screen door. He apologized for his actions and wanted to talk to the defendant. The defendant refused. The deceased then became violent, threatening to burn the house and not let her out of the house. He also stated 'either you kill me or I will kill you'. The defendant stated that the deceased had a dirk in his hand so she shot him once. The deceased then made another lunge at her so she shot again. He died from the bullet wounds.

It may be added that a few days prior to the day of the shooting, the defendant had purchased a gun supposedly to protect herself from the deceased. An eye witness testified that he saw the shooting and never did see a knife or dirk in Livingston's hands nor in the immediate vicinity. Another witness testified that prior to the homicide the deceased had been in his house and had emptied his pockets and no knife or any other weapon had been observed. After Livingston was shot, he went to a tavern close by. He was then taken to the County Hospital by a mutual friend of the parties; the hospital records did not indicate any weapon being recovered from the deceased at admission nor at any time.

The newly discovered evidence presented to the...