State v. Hoggatt
| Citation | 234 P.2d 495,38 Wn.2d 932 |
| Decision Date | 19 July 1951 |
| Docket Number | No. 31680,31680 |
| Court | United States State Supreme Court of Washington |
| Parties | STATE, v. HOGGATT et al. |
Russell F. Stark, Kenneth W. Hill, Raymond, for appellants.
James E. Duree, Fred Schwarz, South Bend, for respondent.
The appellants were convicted of the crime of assault in the second degree, and from the judgment and sentence entered have taken this appeal.
The appellants conducted their own defense. A motion for a new trial was denied. They urge the court should have granted them a new trial, because it was discovered after the trial that one of the jurors was physically disqualified in that his hearing was impaired; also because the evidence was insufficient to support the verdict. They contend the court erred in permitting a witness to testify whose name was not included in the list of witnesses served upon them without giving them time within which to rebut the testimony of such witness; also the court erred in refusing to permit them to inquire with reference to the general reputation of the prosecuting witness for truth and veracity.
Inasmuch as we have concluded that appellants are entitled to a new trial, it is not necessary that we discuss the matter of juror disqualification. The same question is not likely to arise at another trial.
Our examination of the record convinces us that there was sufficient evidence to justify the submission of the case to the jury upon both offenses of assault in the second and third degree; but in view of the fact that we are remanding the case for a new trial we do not deem it advisable to enter into any discussion of the factual situation disclosed by the evidence.
Shortly before the respondent rested its case, announcement was made by the prosecuting attorney that he desired to call as a witness the physician who had attended the prosecuting witness after the assault charged was committed. The witness would not be available until after the noon recess. Objection was made to calling the witness on the ground that his name did not appear in the list of witnesses served upon appellants. In response to an inquiry made by the court, appellants stated they might be able to interview the physician during the noon hour if he was available, but even then they might desire to call some other physician as a witness in their behalf. During the noon recess the appellants contacted the physician, and upon convening of court renewed their objection. The appellants claimed surprise that an expert witness was to be called to testify with reference to the physical condition of the prosecuting witness after the assault. They made no formal motion for a continuance, but it is apparent from the record that they sufficiently apprised the court of a desire for an opportunity either to consult with or secure the attendance of a physician of their own choosing for the purpose of interrogating him on the same subject to be covered by the physician called by respondent.
It was within the discretion of the court to permit respondent to call a witness even though his name was not included in the list of witnesses served on appellants, but appellants were entitled, after being apprised of the identity of the witness, to have a reasonable time within which to consult a physician of their own choosing to determine whether they might obtain rebuttal testimony in support of their defense to the charge of assault in the second degree. We think the discussion had between the trial judge, the prosecuting attorney and appellants when the question arose was sufficient to indicate to the court that appellants desired an opportunity to obtain rebuttal testimony; also that they would be prejudiced if such opportunity was denied them. State v. Willis, Wash., 223 P.2d 453.
The appellants called witnesses who testified without objection as to their good...
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State v. Wolf
...P. 873, 65 A.L.R. 405; State v. Crockett, 161 Wash. 262, 296 P. 1041; State v. Thomas, 8 Wash.2d 573, 113 P.2d 73; and State v. Hoggatt, 38 Wash.2d 932, 234 P.2d 495. In the Elder and Hoggatt cases, it was indicated that the admission of such evidence lies within the sound discretion of the......
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State v. Oughton, 3582-II
...to the assertions of witness Terry Johnson and was therefore prejudiced by the denial of the continuance. See State v. Hoggatt, 38 Wash.2d 932, 934, 234 P.2d 495 (1951). Because the prosecuting attorney failed in the first instance to comply with the discovery rules and because defendant wa......
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State v. Edwards
...to concede the testimony of the witnesses or the truth of their testimony because the question did not arise. State v. Hoggatt, 38 Wash.2d 932, 234 P.2d 495 (1951), a prosecution for second degree assault, seems more closely in point than the other cited cases. There, shortly before resting......
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State v. Clifton, No. 54982-1-I (WA 1/30/2006)
...A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure sec. 1804, at 406 (3d ed. 2004); see also State v. Hoggatt, 38 Wn.2d 932, 934, 234 P.2d 495 (1951) (trial court had discretion to grant appellants a reasonable time to obtain rebuttal witness when new witness was introdu......