State v. Leosis

• Decision Date: 05 January 1931
• Docket Number: 22478.
• Citation: 160 Wash. 176,294 P. 1115
• Parties: STATE v. LEOSIS.
• Court: Washington Supreme Court

294 P. 1115

160 Wash. 176

STATE v. LEOSIS.

No. 22478.

Supreme Court of Washington, En Banc.

January 5, 1931

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Sam Leosis was convicted for a violation of the criminal laws and he appeals.

Affirmed.

Edward M. Connelly, of Spokane, for appellant.

Chas W. Greenough and Carl P. Lang, both of Spokane, for the State.

BEELER J.

On July 5, 1929, the prosecuting attorney of Spokane county charged the appellant in an information containing three counts with the violation of the criminal laws of the state of Washington, and on August 22, 1929, he filed with the clerk of the superior court of that county a list of the state's witnesses. Thereafter, on the same day, and with the knowledge of appellant's counsel, Mr. Edward M Connelly, the court entered an order setting the case for trial on September 12, 1929, on which date the case was called for trial, a jury was impaneled and sworn to try the case, the opening statement was made by the prosecuting attorney, and the first witness for the state was called and sworn to testify. At this stage of the proceedings Mr. Connelly objected to the introduction of any testimony, for the reason that the state had failed to serve a list of its witnesses on him or on his client, or on any person in his office as required by statute. Thereupon argument followed between counsel, in the midst of which the court excluded the jury and ordered the taking of oral testimony which established the following facts:

That the defendant's counsel, Edward M. Connelly, and Mr. John King, and Mr. M. S. Hanauer occupy a suite of law offices in the Old National Bank Building in the city of Spokane; that the three attorneys are not partners, but conduct their law practice separately and independently of each other; that they maintain a common reception room from which each has access to his private consultation room; that they employ, in common, a stenographer and a telephone; that no one of the three attorneys was authorized to accept service of legal papers for the others, although as a matter of accommodation this had been done on a few previous occasions; that a deputy sheriff of Spokane county went to this suite of law offices on the afternoon of August 23, 1929, at the hour of 1:35 p. m., at which time neither the stenographer nor Mr. Connelly was present, the only person there at that time being Mr. Hanauer, and he was in his private consultation room, at which time a true copy of the list of the state's witnesses was served on him as shown by the return of service made by the deputy sheriff; that this list of witnesses thus served on Mr. Hanauer was never brought to the attention of the defendant nor his counsel, the same having been either lost or mislaid.

At the conclusion of the taking of this testimony, the trial court held that there had been no proper service of the list of witnesses made upon the defendant or upon his attorney. Passing on the matter the trial court said: 'I am inclined to think that so far as section 2050 is concerned, that service upon the attorney of record is service upon the defendant, but section 245, I think, prescribes the manner upon which service shall be made upon an attorney of notices, and I think this would probably come under the head of a notice, a list of witnesses, notifying the defendant and his attorney, of the witnesses. It is a process of some kind. Frankly under this record, Mr. Lang, while the matter is somewhat technical, I do not believe I want to take any chance, and I will sustain the objection. You may file your list of witnesses again, and make application now.' Thereupon the prosecuting attorney made the following application: 'Then at this time I will ask leave of court, to use, as witnesses in this case on behalf of the state the witnesses contained in the list on file in the office of the clerk of the court, which includes Roy Fordyce, J. E. Adams, O. G. Haukendahl, G. G. Miles, and Q. Johnson, a copy of which list of witnesses has heretofore by the sheriff been served on M. S. Hanauer, an attorney officing with E. M. Connelly, the attorney of record, at Mr. Hanauer's office which joins that of Mr. Connelly, and in which they have a common reception room and a common stenographer and a common telephone.' Thereupon counsel for appellant made an objection on which the court ruled by saying: 'I will permit the prosecutor to file this list of witnesses, and counsel for the defendants has notice in open court of this. If counsel claims surprise or claims that he will be prejudiced in any manner, I will grant a continuance. Counsel for appellant then stated: 'I am not asking for a continuance. The defendants have come here and presented themselves for trial and are ready for trial, but not with any of the witnesses whose names appear on any list which has not been served on them or their counsel.'

Thereupon the jury was called back in the box, and the case proceeded to trial. At the conclusion of the state's testimony defendant's counsel challenged the legal sufficiency of the evidence to sustain the charge contained in the information, which was by the court overruled, and appellant was thereafter acquitted on count I, and convicted on counts II and III of the information. From the judgment and sentence imposed appellant prosecutes this appeal, and relies on three assignments of error for reversal: First, in permitting the prosecuting attorney to refile the identical list of witnesses a copy of which had been served on Mr. Hanauer on August 23, under the circumstances heretofore detailed, and to...