
    441 P.2d 548
    STATE of Arizona ex rel. Robert K. CORBIN, County Attorney for Maricopa County, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA; C. Edwin Thurston, a Judge thereof; and Loraine Kay Farrier, real party in interest, Respondents.
    No. 9217.
    Supreme Court of Arizona. In Banc.
    June 5, 1968.
    Robert K. Corbin, County Atty., by Stephen A. Gerst, Phoenix, for petitioner.
    Vernon Croaff, Public Defender, by Don Francone, Deputy Public Defender, for respondents.
   BERNSTEIN, Justice.

This case is before us on a Writ of Certiorari. The pertinent facts follow; Loraine Kay Farrier was charged by two separate informations with the unlawful sale of marijuana in violation of A.R.S. § 36-1002.07, subsec. A. Both charges were tried together. At the close of the state’s evidence a directed verdict of acquittal was granted on one of the charges but the included offense of possession of marijuana on that charge was left for the jury’s consideration. Defendant again moved for directed verdicts of acquittal at the close of all the evidence. The trial judge, respondent herein, reserved his ruling, took the motions under advisement, and submitted the case to the jury. Verdicts of guilty were returned by the jury on both charges. Thereafter, the trial judge, pursuant to his reserved ruling on the motions for directed verdict, granted motions for acquittal on both charges and discharged the defendant.

The state, petitioner herein, contends that after the jury returned verdicts of guilty the respondent lacked the power to dismiss the defendant on the basis of legally insufficient evidence. It is the state’s position that the respondent only has the power to either sentence the defendant, grant a new trial, or arrest the judgment. As we see it, the only issue in this case is whether the respondent has the power to grant an acquittal of the defendant pursuant to his reserved ruling on defendant’s motions for directed verdict after the jury returns verdicts of guilty.

Whether the evidence is legally sufficient to support a conviction has always been a question for the court to decide. Indeed, in State v. Schantz, 98 Ariz. 200, 205, 403 P.2d 521, 524, we said:

“ * * * where the trial judge has a conscientious conviction that all the elements of an offense have not been established beyond a reasonable doubt * * he has not only the right but the duty to direct a verdict of acquittal.”

In the case before us, however, the trial judge reserved his ruling on the motions for directed verdict and submitted the case to the jury. We think the proper procedure for the trial court to follow is either to rule on the motion when it is made, or recess the jury while deciding the legal question as to the sufficiency of the evidence. It is obvious that where a trial judge reserves his ruling on a motion for directed verdict and the jury then returns a verdict of guilty that the court’s subsequent ruling granting a motion for acquittal does not constitute a direction to the jury to return a verdict of acquittal. Rather, it represents a judgment non obstante veredicto.

In State v. Moreno, 92 Ariz. 116, 374 P.2d 872, we said that our Rules of Criminal Procedure, 17 A.R.S., do not authorize a motion for judgment of acquittal notwithstanding the verdict. However, State v. Moreno, supra, can be distinguished from the case at bar, for in Moreno the court failed to rule on the motion. Since our Rules do not specifically authorize such a motion the trial court could not be compelled to make a ruling. In any event, in Moreno we held that the evidence was sufficient to support the conviction. Nonetheless, in the furtherance of justice the court has the inherent power to dismiss a defendant who has been convicted where the evidence against him was legally insufficient. In Ex Parte United States, 101 F.2d 870, 875 (7th Cir. 1939), the court in a similar case stated:

“ * * * there was no fact to be tried by the jury. The nature of the legal question involved was not altered by the jury’s verdict of guilt. By virtue of the reservation, the issue of law was preserved inviolate despite the verdict of guilt * * * In fact, to allow the verdict of guilt to stand * * * is tantamount to giving permission to the jury to invade a judicial power.”

We do not condone the practice of submitting a case to the jury subject to a reserved ruling on a question of law, nor do we rely on the fact that a reserved ruling preserves the court’s power to dismiss a defendant for lack of sufficient evidence. Instead, we believe that it is the court’s obligation to protect the innocent and discharge a defendant where the state has not presented sufficient evidence to prove its case beyond a reasonable doubt. To hold otherwise would be to condone injustice.

It is ordered that the judgment of the trial court discharging defendant is affirmed.

McFARLAND, C. J., UDALL, V. C. J., and STRUCKMEYER and LOCKWOOD, JJ., concur.  