State v. McCaskey

• Decision Date: 25 July 1917
• Docket Number: 13989.
• Citation: 97 Wash. 401,166 P. 1163
• Court: Washington Supreme Court
• Parties: STATE v. McCASKEY.

166 P. 1163

97 Wash. 401

STATE v. McCASKEY.

No. 13989.

Supreme Court of Washington

July 25, 1917

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Joseph McCaskey was convicted of keeping in his drug store intoxicating liquors with intent to sell unlawfully, and appeals. Reversed, and new trial awarded.

Gordon & Easterday and Wesley Lloyd, all of Tacoma, for appellant.

Fred G Remann, Geo. M. Thompson, and J. W. Selden, all of Tacoma for the State.

FULLERTON J.

The appellant, McCaskey, is the proprietor of a drug store situated at Wilkeson, Pierce county, Wash. On March 28, 1916 the prosecuting attorney of Pierce county filed an information against him charging that on or about the 24th day of March, 1916, the appellant kept in his drug store 'intoxicating liquor, to wit, whisky, brandy, gin, rum, and wine,' with intent to unlawfully sell, barter, and exchange the same contrary to the statutes. The appellant was shortly thereafter arrested on a warrant issued on the information, and on April 4, 1916, entered a plea of not guilty thereto. The cause was set for trial for Monday, May 8, 1916. At the time the information was filed, and at the time the plea was entered, the information had indorsed thereon the name of but a single witness. This name subsequently proved to be intended for that of a girl, 16 years of age, although it was indorsed in the form of a single initial followed by a surname, without anything to indicate the age or sex of the individual intended to be represented thereby. On Friday May 5, 1916, the Friday preceding the Monday on which the case was set to be tried, the prosecuting attorney procured as ex parte order of the court permitting him to indorse on the information, and thereupon did indorse thereon, the names of nine additional witnesses. A copy of the order containing the names of the witnesses was served on the attorneys for the appellant at about 3 o'clock in the afternoon of the same day.

On Monday when the case was called for trial, the appellant moved the court for a continuance of at least two days to enable him to investigate the characters of the witnesses whose names had been indorsed on the preceding Friday, supporting the motion by the affidavit of one of his attorneys to the effect that neither the appellant nor his attorneys had had an opportunity to inquire into the character and standing of such witnesses, or to learn 'what manner of men and women they' were; further averring that the prosecuting attorney had prior to the time their names were indorsed on the information refused to give their names, and had at all times refused to furnish them with the addresses of the witnesses. The motion was opposed by the prosecuting attorney, who filed an affidavit to the effect that he had at the request of one of the appellant's attorneys furnished him with the names of witnesses at a time prior to the indorsement of their names on the information, in so far as they were then known to the prosecution. The matter was made the subject of further inquiry in which oral testimony was taken. This it is unnecessary to set forth at length. While it developed a misunderstanding between counsel, it seems to us to support the appellant's contention that he was not informed, prior to the time the names of the witnesses were indorsed, whom the prosecution expected to call in support of the information. The inquiry developed the fact, also, that the witnesses intended to be called were, with the exception of two, known to the prosecuting attorney at the time the information was filed. On this subject the prosecuting attorney testified (we quote from the statement of facts):

'I have known at all times since the filing of this information what witnesses were to be called upon the part of the state, but I did not, until a few days ago, know the names of the witnesses Peretti and Currington. I employed them through the Thiel Detective Agency in Seattle, and suppose I could have obtained their names from that agency. I had my own reasons for not indorsing them; reasons I deem sufficient.'

The court overruled the motion and proceeded with the trial, which resulted in a verdict of guilty. From the judgment and sentence pronounced upon the verdict, this appeal is prosecuted.

The error first assigned is the refusal of the court to grant the motion for a continuance. It seems to us that in fairness to the defendant this motion should have been granted. The statute (Rem. Code, § 2050) provides in express terms that the prosecuting attorney, at the time he files an information against an accused person, shall indorse thereon the names of the witnesses known to him at the time of filing the same, and, while we have held that the time when the names of witnesses shall be indorsed is largely a matter of discretion, and that in the absence of a showing of an abuse of such discretion, or that some substantial injury has resulted to the defendant, a conviction will not be reversed for a disobedience of the rule of the statute ( State v. Le Pitre, 54 Wash. 166, 103 P. 27, 18 Ann. Cas. 922), it has never been held that the procedure was an absolute right of the prosecution. The rule of the statute has a purpose. This purpose is to give the defendant an opportunity to inquire into the habits, character, and standing of the witnesses by whom the accusation against him is to be proven, and to show, if he can, that these are such as to render the witnesses in the eyes of their neighbors and acquaintances unworthy of belief. To prevent miscarriages of justice, great liberality has been exercised by the courts in allowing the names of witnesses to be indorsed on an information; but this liberality has never been, and should not be, carried to the extent of working an injustice to the defendant. One cannot read this record without being convinced that there was a studied attempt to keep the names of these witnesses from the defendant until the latest possible moment. There intervened but one working day between the time their names were indorsed on the information and the time the defendant was required to confront them at his trial. They were considerable in number, and seemingly the very short time the defendant requested to inquire into their characters was not unreasonable. We think it an abuse of discretion to refuse it.

The subsequent testimony, moreover, showed that certain of these witnesses were worthy subjects of investigation. As we have said, three of them were mature women, and another as we have said, was a young girl. Two of the women, Mrs Swanson and Mrs. Lavalle, went from Tacoma to the town of Wilkeson, where the business of the defendant was conducted, on the evening of March 21, 1916, arriving there at about 7:30 p. m. They entered the appellant's place of business shortly after their arrival and sought to buy intoxicating liquor. This was refused them; whereupon they asked for alcohol, making the admittedly false statement that they desired it for an alcohol stove. The clerk whom they approached told them that he had wood alcohol which could be used for that purpose, and proffered them that. They informed him that they did not desire that kind because of its disagreeable odor. He then sold them a pint of grain alcohol, for which they signed a regular register, again making the false statement that it was intended for mechanical purposes. On Friday, March 24, 1916, Mrs. Swanson again went to the town of Wilkeson...