State v. Lee Doon
| Decision Date | 24 November 1893 |
| Parties | STATE v. LEE DOON. |
| Court | Washington Supreme Court |
Appeal from superior court, Whitman county; E. H. Sullivan, Judge.
Lee Doon was convicted of assault with intent to murder, and appeals. Reversed.
J. N Pickrell, Pros. Atty., (Chadwick & Fullerton, of counsel,) for the State.
Appellant was tried and convicted on the charge of an assault with intent to commit murder. The assignments of error are, (the arrangement is our own:) First, that the court erred in allowing respondent to indorse the name of Charles Harmon as a witness on the information after the trial began; second the court erred in allowing the jury to view the premises where the alleged affray took place, without the presence of appellant; third, the court erred in not allowing appellant's witness Lee Chu to be sworn and to testify in said cause.
As to the first assignment, section 1230 of the Code of Procedure provides that the prosecuting attorney shall subscribe his name to the information, "and indorse thereon the names of the witnesses known to him at the time of filing the same and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him." It is conceded that the superior court of Whitman county, where this action was tried, has not formulated a rule prescribing the time when the names of the witnesses not known to the prosecuting attorney at the time of filing the information should be indorsed upon the same and we do not think the court violated his discretion in allowing the indorsement to be made at the time it was made in this case. The record shows that the motion was made and allowed during the impaneling of the jury, before the jury was sworn or accepted; and, even conceding that the statute is mandatory, the trial of the case, as contemplated by the statute, was not yet commenced. The impaneling of the jury is a necessary step in the preparation for a trial and organization of the forum, but is not, we think, in the sense it is used in the statute, a part of the trial of the case. The appellant certainly could not allege jeopardy in that case if the case had been dismissed for any cause before the jury had obtained jurisdiction of the case, or had even been accepted. If he could not, then he cannot claim that his trial had begun. 1 Bish. Crim. Law, (7th Ed.) § 1014.
As to the second assignment of errors, the record shows that the defendant, by his counsel, requested the court to allow the jury to inspect the premises where the difficulty leading to defendant's arrest occurred, and the court granted the request, and allowed the jury to go, under the usual admonitions, and under the supervision of a bailiff. The defendant did not ask to be allowed to accompany the jury, and did not do so. The contention of the appellant is that a view of the premises is a part of the trial, and that it is the defendant's constitutional right to be present at the time. We do not think the view is any part of the trial. The trial can be but in one place at a time, and that place is where the judge presides and the evidence is produced. The jury does not view the premises for the purpose of obtaining evidence. No evidence is allowed to be offered there to the jury, under any rules or any circumstances. They simply view the premises for the purpose of enabling them to make an intelligent application of the testimony presented at the trial. There is some conflict of authority on this proposition, but we think the weight of authority and better reasoning is with the respondent. Among the best recent cases sustaining this view, we cite: State v. Adams, 20 Kan. 311; Shular v. State, 105 Ind. 289, 4 N.E. 870.
The third assignment, namely, that the court erred in not allowing appellant's witness to testify, is, in our judgment, more serious, and involves a substantial right of the defendant,-a right which goes to the life of the defense namely, a right to have witnesses examined in his behalf. It appears from the record that the court had made an order for the exclusion of the witnesses during the progress of the trial. Lee Chu had been subpoenaed on the part of the defendant, and appeared in the court room at the opening of court on the third day...
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Snyder v. Commonwealth of Massachusetts
...P. 372, 28 L.R.A. 33; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L.R.A. 368; Starr v. State, 5 Okl.Cr. 440, 115 P. 356; State v. Lee Doon, 7 Wash. 308, 34 P. 1103. 29 Patton v. United States, 281 U.S. 276, 292, 50 S.Ct. 253, 256, 74 L.Ed. 854, 70 A.L.R. 263. ...
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People v. Johnson, 76--55
...123 (1942); Degg v. State, 150 Ala. 3, 43 So. 484 (1907); Johnson v. Cooley, 30 Tex.Civ.App. 576, 71 S.W. 34 (1902); State v. Lee Doon, 7 Wash. 308, 34 P. 1103 (1893); Davis v. Byrd, 94 Ind. 525 (1884); Rooks v. State, 65 Ga. 330 As the recital of the facts of the instant case makes clear, ......
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State v. Perkins
... ... Appellant ... was not denied the right to meet the witnesses against him ... face to face, insured by Art. I, § 22, of the state ... constitution, as amended by the tenth amendment thereto. See ... the opinion of this court in State v. Lee Doon, 7 ... Wash. 308, 34 P. 1103. For a general discussion of the right ... to confront adverse witnesses, see State v. Bolen, ... 142 Wash. 653, 654, 254 P. 445; State v. Johnson, ... 194 Wash. 438, 78 P.2d 561 ... It is ... also contended, and with ... ...
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State v. Cates, 7224.
...be conducted in such a manner as to amount to the taking of testimony. The Supreme Court of Washington, in the case of State v. Lee Doon, 7 Wash. 308, 34 P. 1103, 1104, said with reference to the view of the premises in a criminal case: “The jury does not view the premises for the purpose o......