State v. Neil

996; City Tramway Cowan, Denver Co. v. Arizona Law § 11, Evidence Canon v. 136; 51 Colo. Rapids Grand & Hazlett, Mass. N.E.2d Ellison, I. R. Co. v. 117 Ind. 20 N.E. Brandt Matson, 256 Wis. 41 N.W.2d 135; Hunt, Black v. 96 Conn. 115 A. 272. Am.Jur., Servant, Master & § Since the knowledge railroad’s page 978. uncontested here and abundant evidence on alleged as further error that such already issue having received, incorrectly trial court refused to admit evi- the failure of the trial court to admit addi dence to the (1) railroad tional point evidence preju on this recognizing officials had issued order dicial and did not constitute reversible er Ninety-first that the crossing Avenue ror. repair more in need than other cross- Affirmed. ing district, (2) the defendant’s em- ployees corresponded with each other McFarland, J., V. C. and LOCK considerably proposed about the installation WOOD, J., concur. flashing lights protection Nine.ty-first crossing, (3) Avenue the rail- plans

road had made and estimates for the crossing,

work at the (4) the railroad

had issued a district work order cross-

ing signals. This evidence was offered as

proof negligent maintenance of inade-

quate protective unusually at an devices crossing. .hazardous Plaintiff contended Arizona, Appellee, The STATE of plead- under the issues framed ings competent proof this evidence was NEIL, Appellant. Dale Albert that the defendant railroad knew cross- No. 8897-PR. trap only equipped was a death when protection. with cross-buck Supreme of Arizona. Court consisting This evidence of statements In Banc.

and memoranda of the defendant railroad March employees prove and its was offered that the knowledge railroad had of the dan-

gerous crossing. condition at the involved

But the railroad did not contest the issue

of knowledge of the condition of this cross-

ing. engineer, In fact the railroad’s signal supervisor

fireman and all testified Ninety-first effect that the Avenue

crossing was the most and con- obstructed

gested protected cross-buck intersection on

this run. This was abundant evidence to

establish the knowledge railroad’s

character crossing.

These statements and records were

cumulative- knowledge. on-

Whether cumulative evidence al will be particular

lowed on a point proper is a area

for the trial court’s discretion. See Smith, Gen., Atty. Philip

Darrell F. W. Marquardt, Gen., Atty. appellee. Asst. Thikoll, Tucson,

Leon appellant. McFarland, Justice: Neil, Albert Dale herein referred to as defendant, appeals judgment from a guilty conviction of two counts of forgery, County rendered the Pima Su- perior February Court on case is in petition on a for re- view decision of the Arizona Court Appeals, Two, reported Division in 4 Ariz.App. 419 P.2d 388. judgment and conviction on the same charge had previously rendered May 25, 1965, appeal court on and on Appeals judg- Arizona Court of ment reversed, and the cause remanded superior court for a new trial. State Neil, 2 Ariz.App. 230, 407 P.2d 419. On morning of the new trial counsel for defendant was informed that had re-assigned Judge Garrett, who had at the former trial. Before called, disqualification, the mere the trial had his but jury time, commenced, though the the affidavit even affidavit of an oral judge against aimed en- Judge Garrett. whom is prejudice was ” charge.’ tirely free from either on which (quoting P. at 165 based was that reversal prej- Copper Company Hickey, 46 and Washoe trial tend in bias v. would to result 363, 584) Mont. P. part presiding udice on Stephens case, supra, In the Proce- of Arizona Rules Criminal judge had made orders —one of dure, change of several provide a for required pay which the affiant certain to judge as follows: suggested costs. It was that it was by or in- prosecution a indictment “On prompted order of may defendant formation the state or a said: affidavit. We apply change judge for a of “ ** impartial trial that fair and a require The law does the interest by be had reason of cannot any give assign affiant to or reason or judge.” prejudice trial Rule reasons for his belief that he cannot Cr.Proc., 196, 17 A.R.S. Ariz. Rules impartial a fair of have trial because judge’s prejudice bias or or interest. in nor defendant “Neither state requires It af- him to make and file the than one may action make more the same contents, prescribes but fidavit and judge.” application change Rule for it does it a of the af- not make condition Cr.Proc., 198 Ariz. Rules 17 A.R.S. true, that nor will it fidavit application judge is made to “When making weigh or estimate the motive change judge, for a he shall it. So have then matters what except call no further in the action affidavit, prompted complies if it judge preside another therein.” with the made and law was filed 200, Cr.Proc., A.R.S. Ariz. Rules 311, time.” 152 P. 17 Ariz. that rules court has held filing of the af- The timeliness of the judge pertaining of law times fidavit considered several essentially the same in civil cases as of Allan v. this court. In the case 539, criminal cases. Marsin v. Allan, 70, held 21 Ariz. it was P. 309, right a fair trial is 279 P.2d 721. timely was not where the affidavit upon a foundation stone which our judge prior depositions had taken in a Necessarily judicial system included However, rests. hearing to be used at the trial. right in this to have there other in the Allan considerations completely over who is properly pre- as the affiant had not impartial prejudice. bias free of urged It sented nor his motion. was there early right, order to insure this this court stated act to dis- that announced, Stephens v. case qualify filed before the Stephens, 164, that 152 P. 17 Ariz. State, commences. In Sam v. 33 Ariz. litigant peremptory right dis has a 265 P. we said: qualification. there “ said: * * af- held that such *—we have “ trial are fidavits when ‘To required peremptory challenge to the trial litigant state is not upon judge’s and that he has no discretion which his claim of bias founded, Stephens Stephens, passing prejudice this as- thereon. affidavits pect proceeding anal- 17 Ariz. 152 P. 164. The the case the filing until after were not offered for ogous in the exercise invoked commenced, challenge juror. It is the trial of case peremptory to a nor in fact defendant’s nor which works not the bias signed The trial com was of force and effect at that time. because even least, mences, purpose at when The rule is that an affi- for this filed. jurors are first called into the box. must be sea- davit bias State, Caples sonably 26 L.R.A. filed or it is It is like- Okl.Cr. waived. (N.S.) 33 Ariz. at wise P. 493.” the rule when the 402, 265 at 616 after facts are unknown to affiant until expiration of the time that affi- Corp. In Arizona of Seventh Conference normally presented, davit Day Barry, Adventists v. application regard the rule to waiver discovery if made of such facts. peremptory right given a more This latter rule is well stated 48 C.J.S. interpretation, Mexico strict and the New Judges page as follows: § the if filed rule that affidavit was any con- before the has ruled on object party “‘Where the entitled to adopted. matter tested whatsoever was disqualifying informed of the Barry later This case was statement expiration facts until after the of the expressly disapproved in Marsin v. obj time in which ection should be . In the Marsin made, objection, his made on discov- the supra, was modified to this rule facts, ery regarded of the as will be ruling extent that evidence or of the seasonably made.’ bearing the matters on on collateral ijí ;¡í ‡ ‡ ‡ ‡ a waiver final decision did not constitute question, “The troublesome unanswered challenge of the the fairness court, by any pronouncement of this judge. application proc- how such an be question in the instant case is The Unquestionably, par- essed. interested prejudice whether an affidavit of bias and hearing upon ties were entitled to a granted is filed after a new trial has been motion for a substitute timely. In Hendrickson v. respondent had and decided as a Ariz. any inquiry matter of law without as specifically recognized types of af we two after-dis- nature of the claimed prejudice. The first fidavits of bias and subsequent discovery covered facts or bias and is an affidavit of untimely application thereof that the that its timeliness under such conditions and effect. think of no force We questioned. an affidavit cannot be Such proper affidavit of this was error. imports verity, challenged, and cannot be that its under such conditions bias filed court; operates questioned imports timeliness cannot be second, an affidavit of bias operates verity, challenged and cannot be un made when facts Stephens, 17 disqualify. Stephens until after the time known to affiant necessity an 164. Of normally pre expired for to be herein concerned such as is affidavit the second truth sented. Under rea- under this for the cannot come rule Hen In the must be established. affidavit dependent upon timeliness is son that its case, supra, there was drickson discovery subsequent that war- of facts after the mistrial was filed and the affidavit judge is an rant honest belief that the re and before the commencement may be chal- biased. Such an affidavit question, we disposing this done, legal lenged suf- and if said: ficiency affidavit and timeliness judge pre- is whether must be determined “The for solution siding matter foregoing circumstances or one to whom the under the assigned purpose. Such determi- respondent judge could decide knowing of bias nation cannot be made without matter of law that duty permit time claimed after-discovered facts for the they subsequently dis- formal affidavit. whether were Consequently, in the event covered. The affidavit was based on the questioned validity of the affidavit ground the reversal of the party, opposing a hear- or an preju trial would tend to result in bias and inquiry made should be had dice of the trial had been required re- affiant to disclose granted solely upon that there subsequent discovery there- upon and lied improper communication between such as would of. If facts are not jury, having bailiff and the the court per- warrant the affiant as a reasonable improperly give directed the bailiff to honestly ques- believing that the son forgery jury. oral definition appears biased if it tioned court, overruling the motion discovered, they subsequently found that the error the court application should be denied as the first was not sufficient to war hand, If, the other matter of law. prejudice. rant a true, facts, claimed after-discovered holding. court did not err in United so would warrant affiant as reasonable Co., Packing States v. Pioneer 10 Alaska person honestly believing she would Buchman, In re Estate of 132 Cal. impartial trial and not obtain fair and 451, App.2d 81, 608, 281 P.2d application for substitute was Morse, cert. denied Buchman v. 350 U.S. facts, the upon discovery made of such 873, 118, 772; 76 S.Ct. 100 L.Ed. Walker 12, at granted.” same should State, 204, 383; Ala.App. v. 38 84 So.2d 13, 1237, 509, A.L.R. at 330 P.2d Steward, Board Medical v. Examiners 574, 248; 203 Md. 102 A.2d Atlantic & Birmingham Ry. Mayor City Co. v. & In the instant case the affidavit Cordele, 293, Council of 128 Ga. 57 S.E. comply did with not 493; Anaya Scarborough, State ex rel. v. oral, in that it and was statutes was 702, 732; May, 75 N.M. 410 P.2d May v. provided days the trial filed three before 522, Ky. 150 S.W. 685. pro under the held that a rules. We have affi providing for an vision of rules The ques case then turns days a trial davit to be filed three tion of whether applicable is is not where before the second trial was under Mar period time. known within this category, the first as set forth in Hendrick jurisdictions supra. sin v. Other Court, Superior supra. son v. so, If then Tarsey v. Dunes have rule. followed this disqualification peremptory. was 910; Inc., 343 P.2d Hotel 75 Nev. Hendrickson, supra, expressly we held that Marshall, St. Wolf v. Ohio an affidavit after a mistrial filed was Sommer, 848; N.E. State ex rel. LaBaw v. category, under first and that 420; Ind. 146 N.E.2d required proof prej of the facts of bias and Jones Jones, 242 Minn. 64 N.W.2d procedure The after re udice. a trial Smith, State rel. Beeler v. 76 Wash. ex substantially that after versal same as objection 136 P. 678. There was no a mistrial. affidavit on consideration of Criminal Proce- Rules comply the statute basis that it did not with dure, provides as follows: regard. assignment in this granted, known the new try not made “When a new trial is was respects affi a formal shall in all as if to defendant time for presented, and former trial prepared had. On the davit to he to make a rul trial the defendant convicted of had the court inclined charged grounds, it have been offense in the indictment on would these appears be but a codification regardless codes information or Wheeling meaning. & law the common finding the former Richter, Ry. 131 Ohio Co. v. he Lake Erie shall not former verdict argu- 3 N.E.2d 408. St. referred to evidence used or ****** [Emphasis add- ment on the trial.” «*

ed.] are of the We 41-15-7, simply means supra, specifical Section that the statute It will he noted any case that the district court which granted ly provides that when a new re- a new trial shall respects remanded for proceed in all trial “shall the new retry of fact. all issues examine trial had been had.” as if no former that the trial ****** specifically legislature stated recog in effect proceed, that in absence of conclude “We already it had started. nition that compelling as were reasons such Mex precise question presented New was Keating v. in the case of Nelson, ico, 65 N.M. in State 209], after supra Cal.2d [45 con defendant had been P.2d 301. The tried, a case has murder and sen the crime of victed of power jurisdiction or cannot be ousted of penalty. A new death tenced to the preside over the new trial.” and an affidavit of bias granted, De against the wording be noted It will again the crime fendant convicted of than the stronger in New Mexico is statute murder, given the death sentence. in that “the district one in Arizona * * * conviction, Appeal On second in same proceed thereon question was as in the this same there- had not been manner as if said cause instant case. The court held: However, use statutes both tofore tried.” “proceed.” held New As was question presented word

“The final is whether Mexico, recognized that legislature appellant disqualify Judge to was entitled Tackett, a continuation orig new trial was had at the who these cir- against defendant. Under objection, sitting inal trial from without cumstances, only per- defendant should in the new trial of the cause. upon proof that jurisdic mitted to claimed was without prejudiced fact biased and as he was in tion do affi so since a Hendrickson, supra. against pursuant set forth davit had been filed him 21-5-9, provisions of Section 1953 Court, Superior et al. v. Jacobs Compilation. Appellant relies on Section Cal.Rptr. P.2d Cal.2d 41-15-7, NMSA, pro Comp., court, litigant holding that a follows: vides as disqualify a peremptorily entitled to “ prior was a continuation where there ‘The district court crim- to which proceedings, stated: inal cause shall be remanded for new “ man- shall thereon same make procedure would Such if there- ner as said cause had not been litigants gamble on ob- possible it for tofore tried.’ one taining a favorable decision then, if confronted with statutory judge, and jurisdiction “In this there is no disqual- judgment, allow them However, the adverse definition of a new trial. showing presenting ify facts trial, him without usual definition of a new both com- securing a dif- hope prejudice, in the statutory, and a re- mon law is that sup- judge in another ruling from ferent examination of an issue of fact involving sub- plementary proceedings jury. same court after a verdict' * * * Cal.Rptr. stantially same issues.” statutory Hence definition P.2d at 11. many. trial contained in of' BERNSTEIN, (dissenting). Chief already been case, there had In the instant Justice convic- trial and mistrials before two respectfully dissent I must most court, in was reversed. tion which majority of this preju- upon the of bias ruling case, on the posture this Under the trial, re- the last beginning of dice at the the defendant very the new trial morning of previous mistrial lated the facts of time that the same learned for the first and, so, doing stated: reversal assigned hear the case. judge had been investigated that matter Court “The believe, timely, I under- appellant feeling that would granted a standably, for his oral motion rights the defend- prejudicial to the denied. This motion was trial after go ahead with the ant to heavily upon majority Hen relies juror, had known of who drickson v. charge, related another trial on involv a case members of least one or two to at request ing a the selection panel that following a mis commencement of a retrial jury. theory majority’s is that a trial. The replete that think the record is “I analogous; trial and a mistrial nothing to base an actual Court has done a new argue in trial is not effect a new ” ** charge prejudice on. only trial but “a continuation of the against defendant.” disqualifi- hearing of motion for On cation, and called to Pro- Arizona Rules of Criminal the court were not sufficient attention of cedure, provides follows: as required by the decision as Hendrickson the new granted, a new trial “When person affiant as a reasonable “warrant the respects proceed in all trial shall questioned honestly believing that trial had teen had. the new On former ** Also, under the judge is biased defendant be convicted trial the principles enunciated the Hendrickson charged in the indictment offense case, the affidavit of bias and regardless of the verdict information filed insofar as to finding The former former trial. peremptory disqualification. We find not be used or law, principles of as established in this state argument on in evidence or referred to controlling Hendrickson to be (Emphasis added.) the new trial.” the case at bar. in our determination of appeal It is once an well established that presents grounds for Defendant no other perfected has been the trial court all loses ques- appeal. He reversal on this raises no jurisdiction. Lopez, State v. tion of failure to receive a fair and im- Further, trial court’s with the partial solely trial and relies on his conten- trial, denial of motion for new defendant’s that the tion motion of bias and end, all came matters to an made, been and should have concluded, is- there no “ultimate remained granted as a matter of law. We therefore Follow- sues” for the court to trial decide. hold, herein, for the that the reasons stated sentence, had there been conviction judgment superior and sentence of the filed, no trial I motion for a new should be affirmed. readily think all members of the court would The decision of the Court of agree that the case was over. Appeals, Two, vacated, Division judgment af- Court is Therefore, patently clear that seems firmed. “when”, appeal, granted” “a new trial is is not “a continuation new trial STRUCKMEYER and UDALL, JJ., against (as majority trial defendant” concur. opinion states) Under but a new trial. subject proceed appealable all re- trial is to review “the new trial shall new spects as no trial been had” this court.” former original in- proceeds The new trial from the jury In trial all cases after * * information, * * * * dictment or does not judge “exercises” final from, old or become a continuation granting denying a mo- “discretion” trial, discharged, jury of which has pronouncing sen- tion for new trial and in jurisdiction of which has lost acts, he performing judicial tence. In these judgment and the of which right- good acts in faith and believes has been reversed. he When subse- eousness of what has done. quently suffi- judgment “is set aside'for Furthermore, I Hendrick- believe ordered, reason,” cient and a new case, supra, is applicable. There son human than same trial less a critical trial and distinction between a new with some if he did not enter that new trial Pat a mistrial. In State ex rel. Sullivan v. outcome; just preconceived notions as to terson, 40, 45, 64 Ariz. P.2d twice, book as one who reads same aptly ap court held “the term ‘mistrial’ ending gets he to it. knows its plies discharged jury to a a case which impartial trial be right a fair and equivalent a verdict. A mistrial is without impartial judge a valuable a fair and fore judgment or to no trial.” Hence no final Udall, Ariz. right, substantive Marsin v. rendered sentence thereon is the court. procedure and rules Co., Stern v. Wabash R. Misc. change re authorizing a 181, 182, Supreme New N.Y.S. Court of a and not a strict construction. ceive liberal said, a new distinguishing York between promote construed Such rules should be trial and a “the former results right rather to a than to defeat The latter the exercise of discretion. right judge, and the of a defendant nugatory is a A mistrial is a matter of law. absolute, People v. Mc completed recognizes trial. new trial Ill. N.E. (1932), 350 Williams trial which for sufficient reason has People 28 Ill.2d (1963), v. Smith litigated set aside so that the issues cases found reversible N.E.2d 880. These parte Alpine, de novoand in Ex 203 Cal. grant a court’s failure error in the trial 947, 949, 1500 the Su- 58 A.L.R. change of motion for distinguishing preme Court of California “A mistrial decisions said disqualification being per- thing in name or trial are not the same Stephens Stephens, emptory, the rule equivalent A mistrial is 307, 309, effect. 152 P. as set out * * trial; nugatory a new it is applies, majority opinion and this cause * * * This recognizes completed trial. arid remanded for should be reversed make power whatever to court has no mistrial” order based * * * LOCKWOOD, J., in this dissent. granting concurs “an order whereas

Case Details

Case Name: State v. Neil

Court Name: Arizona Supreme Court

Date Published: Mar 29, 1967

Citation: 425 P.2d 842

Docket Number: 8897-PR

Court Abbreviation: Ariz.