State v. Martin

• Decision Date: 10 November 1931
• Docket Number: 23088.
• Citation: 165 Wash. 180,4 P.2d 880
• Court: Washington Supreme Court
• Parties: STATE v. MARTIN.

4 P.2d 880

165 Wash. 180

STATE v. MARTIN.

No. 23088.

Supreme Court of Washington, En Banc.

November 10, 1931

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Frank B. Martin was convicted of driving an automobile while under the influence of intoxicating liquor, and he appeals.

Reversed with directions to grant a new trial.

MILLARD and HERMAN, JJ., dissenting.

Chas A. Turner, of Everett, for appellant.

Charles R. Denney and Phil G. Warnock, both of Everett, for the State.

TOLMAN C.J.

The appellant was accused, by an information in three counts (1) of driving an automobile while under the influence of intoxicating liquor; (2) of reckless driving; and (3) of possession of intoxicating liquor. Upon the trial, the court dismissed the second court, and the jury found the appellant not guilty on the third count, but guilty on the first. From a judgment and sentence on the verdict on the first count the appellant appealed.

On the three contentions made by the appellant in this court, only one requires discussion, and that is that the trial court erred in refusing to permit the appellant to introduce the testimony of two persons who had been subpoenaed on behalf of the appellant at the direction of the court and were present at the trial ready to testify, but whose names were not on any list of witnesses served by the appellant upon the prosecuting attorney as required by Rem. Comp. Stat. § 2050, as amended by Laws of 1925, Ex. Sess., p 420, c. 150,§ 2. The section as amended reads as follows, the new matter being italicized:

'All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney of the proper county as informant; he shall subscribe his named thereto, and at the time the case is set for trial the prosecuting attorney shall file with the clerk a list of the witnesses which he intends to use at the trial and serve a copy of the same upon the defendant, and within five days thereafter the defendant shall file with the clerk and serve upon the prosecuting attorney a list of the witnesses which the defendant intends to use at the trial. Either party may add such additional names at any time Before trial as the court may by order permit, and the said court shall possess and may exercise the same powers and jurisdiction to hear, try, and determine all such prosecutions upon information, to issue writs and process, and do all other acts therein, as it possesses and may exercise in cases of like prosecution upon indictments.'

The names of the state's witnesses were all indorsed on the information, which was filed with the clerk on April 18, 1930, and a copy of which was shortly thereafter delivered to the appellant. This was a sufficient compliance with the statute on the part of the state. State v. Rose, 145 Wash. 634, 261 P. 391. On May 5, 1930, the case was set to be tried on the 26th of that month, on which date it was reset for trial on June 13, 1930, but, because of the crowded condition of the calendar, the trial did not actually occur until the 16th. On May 9, and again on June 11, the appellant, upon affidavits of his counsel, procured orders for subpoenas to witnesses, both times including the names and addresses of the two persons above mentioned whose testimony the court declined to receive. None of these papers was served upon the prosecuting attorney, nor was any other paper containing the names of those or any other witnesses ever served upon him by the appellant.

At the trial the appellant testified on his own behalf, and then presented as witnesses the two persons above mentioned, one R. A. Kelly and a Mrs. Bagon. Upon objection by the state, on the sole ground that no list of the appellant's witnesses had ever been served upon the prosecuting attorney, the court refused to allow them to testify. The offer of proof was to the effect that Mrs. Bagon would testify that, when the appellant and two young women accompanying him had left Seattle earlier in the evening of the accident that occasioned his arrest, they were entirely sober, and that there was no evidence of intoxicating liquor about them; and that Kelly would testify that the appellant and his two companions had visited his home in Everett for an hour or so a short time Before the accident; that no intoxicating liquor had been consumed or seen there; that the visitors had left his home entirely sober; and that he observed about them no evidence of intoxication.

The two young women, a Miss Gaus and a Miss Ward, had been called and had testified as witnesses for the state. The court, in rejecting Kelly and Mrs. Bagon as witnesses, offered to permit the appellant to call Miss Gaus and Miss Ward as his witnesses, because the state had called them. The appellant did this, and they testified as favorably for him (as nearly as we can tell from the record) as the offer of proof indicated that Kelly and Mrs. Bagon would have testified. Their testimony and his own constituted all of the appellant's evidence.

The prosecuting attorney, in opposing the introduction of the testimony of Kelly and Mrs. Bagon, did not claim that, if either or both were allowed to testify, the state would be put to any disadvantage by reason of surprise or otherwise.

Whether the appellant's omission to serve a list of witnesses was due to inadvertence or oversight on the part of his attorney or to intentional disregard of the requirement of the statute does not appear.

The appellant contends on this appeal that that part of the statute quoted above which requires a defendant in a criminal action to serve upon the prosecuting attorney a list of the witnesses whom the defendant intends to use at the trial is unconstitutional, or, if not, then that the statute is directory merely, and that the trial court abused its discretion in excluding the testimony of Kelly and Mrs. Bagon. The state assumes that the part of the statute mentioned is constitutional concedes that it is directory only, and insists that there was no abuse of discretion.

There have been other cases Before this court involving the statute now attacked. In State v. Sickles, 144 Wash. 236, 257 P. 385, 387, five witnesses for the defendant, not included in any list previously served, were not allowed to testify. The occasion to use one of the witnesses arose first during the trial, and there was a suggestion that the defense did not know of the other witnesses until the evening Before the trial. The offers of proof indicated that the excluded testimony would have been competent and material. The defendant's only evidence was his own testimony. The state did not claim surprise or any other disadvantage by reason of the failure of the defendant to serve a list of witnesses. The trial court granted a new trial on the sole ground that the provision of the statute in question, being mandatory, violated a right guaranteed and accused person by section 22, article 1, of the state Constitution, which reads as follows: 'In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, and the right to appeal in all cases; and in no instance shall any accused person Before final judgment be compelled to advance money or fees to secure the rights herein guaranteed.'

The state appealed from the order granting a new trial, and this court affirmed it, holding that the statute (referring, of course, only to that part requiring a defendant to serve a list of witnesses) is not mandatory but directory merely, and that the trial court abused its discretion in rejecting the proffered testimony at the trial. In the course of the discussion we expressed the opinion that to construe the statute as mandatory instead of directory, precluding the exercise of any discretion by the trial court, 'would certainly render the statute unconstitutional;' meaning, of course, that to apply the statute indiscriminately, so as to exclude testimony on behalf of a defendant because, and only because, he had not served a list of witnesses upon the prosecuting attorney, would be to deprive him of rights guaranteed by section 22 of article 1 of the state Constitution ; that is, the right to appear and defend and the right to have compulsory process to compel the attendance of witnesses and the necessarily implied right to produce witnesses without compulsory process. We recognized that prior to 1925 the prosecutor in a criminal case was at some disadvantage in not knowing Before the trial who the defendant's witnesses would be, and that the amendment then introduced into the statute was intended to put the parties more nearly upon an equality; and we said, though it was not necessary to a decision of the case, that we saw 'no reason why the accused in a criminal case, in the interest of orderly procedure and to protect the rights of the public, cannot be required to furnish a list of witnesses after a reasonable time after having received a list of witnesses from the prosecution, without violating the constitutional right to compulsory process.'

In State v. Adams, 144 Wash. 699, 257 P. 387, the situation was identical with that in State v. Sickles, except that no offer of proof was made, nor was any excuse shown for the failure to serve a list of witnesses; and we held that the granting of a new trial was proper because at the trial the court should have...