¶1(dissenting).
¶2For several reasons I dissent, not only from the reversal of the judgment of conviction but more particularly the directions to grant defendant’s motion for a new trial.
¶3After the instant appeal was docketed, the State made a motion to dismiss which I voted to grant for the reason that the grounds on which the appeal is taken were res judicata. By a minute order the majority of the court (vote was 3 to 2) on May 26, 1959 denied the motion. It would not appear to be amiss for me to now briefly state the reasons for my stand in the matter.
¶4It indubitably appears both from official court records now before us and from this court’s unanimous decision on the first appeal, State v. Hill, 85 Ariz. 49, 330 P.2d 1088, that the purportedly newly discovered evidence (herein relied upon for reversal) is the exact evidence upon which defendant’s motion for a new trial, dated October 1, 1957, was based; i. e., there has been no newly discovered evidence subsequent to that date.
¶5It appears to me that the trial court impliedly denied the defendant’s motion for new trial predicated upon the newly discovered evidence when it stated: “This court isn’t interested too much on newly discovered evidence, but the court did go into the question … This view is borne out by the minute order made at the time when counsel—after the reversal— urged its reconsideration. This succinct and enlightening order, dated December 8, 1958 reads as follows:
“The motion for new trial on the grounds' of newly discovered evidence was denied and at this time is specifically denied.” (Emphasis supplied.)
¶6An examination of the briefs filed in the first appeal (Our Number 1114) discloses that this question of newly discovered evidence is repeatedly referred to. Hence it seems to me that the matter is now res adjudicata. Surely the law does not contemplate that such questions shall be taken up piecemeal. If the original order on this question was not to defendant’s liking undoubtedly the court would have made it more specific. Counsel for defendant cannot take advantage of invited error and use it as the basis for a further review.
¶7In disposing of the first appeal the mandate read:
“The order of the trial court granting a new trial is reversed and set aside with directions to reinstate the *42jury’s verdict.’ 85 Ariz. 54, 330 P.2d 1091.
¶8It will be noted there was no direction to the trial court to again pass upon the motion for new trial previously filed. (Cf. the order entered in Zugsmith v. Mullins, 81 Ariz. 185, 190, 303 P.2d 261.) If counsel intended to present the matter anew he should have immediately asked this court for an amended mandate specifically sanctioning such procedure. The Supreme Court’s mandate is measure of the trial court’s power on further proceedings, whether right or wrong. Vargas v. Superior Court, 60 Ariz. 395, 138 P.2d 287.
¶9Moreover, I dissent from the majority opinion because I do not believe defendant met the requirements of Rule 310, Rules of Criminal Procedure prescribing the mandatory grounds for new trial. The record belies the claim that defendant “could not with reasonable diligence have discovered and produced upon the trial” the new and material evidence upon which he now relies. It is conceded that counsel on the third day of the six-day trial had been given the entire police report containing the blue recording disk, which is a part of the record now used as a basis for showing discrepancies. (Incidentally the vital question so strongly relied upon as being incorrect does not appear upon the disk at all.)
¶10Here again we have matters being urged twice before the trial judge. The motion for new trial presented the trial court with two clear questions of fact: (1) whether counsel had exercised due diligence; and (2) whether the newly discovered evidence, if it had been introduced at the trial would have influenced the result. Both questions were determined by the trial judge adversely to defendant. I submit that he was in a much better position than the members of this court to decide whether reasonable diligence had been shown in its production, or whether its introduction at the trial “would probably have changed the verdict.” A reversal on these grounds amounts to a substitution of “impressions” of the majority for the specific findings of the trial court.
¶11It is for these reasons that I register this dissent. I favor dismissing the appeal thus letting the judgment and sentence stand. The obvious aim of counsel is to further delay the incarceration of this-elderly defendant.