State v. Le Pitre

• Decision Date: 14 July 1909
• Citation: 103 P. 27,54 Wash. 166
• Court: Washington Supreme Court
• Parties: STATE v. LE PITRE.

103 P. 27

54 Wash. 166

STATE v. LE PITRE.

Supreme Court of Washington

July 14, 1909

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Frank Le Pitre was convicted of a felony and of being an habitual criminal, and he appeals. Affirmed.

M. A. Stafford, for appellant.

Otto B Rupp, Herbert C. Bryson, and Everett J. Smith, for the State.

CHADWICK J.

Appellant was convicted of a felony in the superior court of Walla Walla county, whereupon a supplementary information was filed under the habitual criminal statute. Laws 1903, p. 125, c 86. On December 11, 1908, the case was called for trial, and a jury impaneled and sworn to try the case. At the trial the court allowed the prosecuting attorney, over the objection of appellant, to indorse the name of a witness upon the information. This witness testified as to the identity of the accused. Appellant was convicted, and now asks us to set aside the verdict.

It is first contended that the statute (Ballinger's Ann. Codes & St. § 6832 [Pierce's Code, § 2078]) is imperative, and that the names of the witnesses known to the prosecuting attorney at the time of the filing of the information cannot be thereafter indorsed. It is admitted that the names of witnesses can be indorsed at any stage of the trial; but it is said this can only be done upon a proper showing that the witnesses were unknown prior to the time the application was made. A number of cases from other states are cited to sustain this contention; but, whatever the rule may be elsewhere, it is settled in this state that the indorsement of the names of witnesses upon an information is largely a matter of discretion with the court, and, in the absence of a showing of abuse, or that some substantial injury has resulted to the accused, the order of the court will not be reversed. Counsel complains that the question has never been squarely decided by this court. In State v Holedger, 15 Wash. 443, 46 P. 652, the court said: 'It has been frequently held by this court that such act on the part of the prosecuting attorney will only entitle the defense to a continuance. It not appearing from the record that a continuance was asked for in this cause, for the reason alleged, the objection will not be sustained.' In State v. Bokien, 14 Wash. 403, 44 P. 889, the following language appears: '* * * It will be observed that no express provision is made for the indorsement of the names of any witnesses after the trial has begun. Does it follow from this that the court may not permit the indorsement of the names of witnesses during the course of the trial, if necessary to the attainment of justice? We think it does not.' In that case the case of State v. Cook, 30 Kan. 82, 1 P. 32, was quoted; the court adopting its reasoning. It is unnecessary to reproduece the quotation here. Suffice it to say that it sustains the principle so often announced by this court that such order of itself does not constitute reversible error. State v. Kelly, 14 Wash. 702, 45 P. 38; State v. Lewis, 31 Wash. 515, 72 P. 121; State v. Sexton, 37 Wash. 110, 79 P. 634; State v. Van Waters, 36 Wash. 358, 78 P. 897.

The habitual criminal statute is a thing of modern creation, and while there are many rules of law which may seem inconsistent with its purpose and the procedure adopted to compass it, it is nevertheless sound in principle and sustained by reason. Aside from the offender and his victim, there is always another party concerned in every crime committed--the state--and it does no violence to any constitutional guaranty for the state to rid itself of depravity when its efforts to reform have failed. The act is not ex post facto. It does not deny the right of trial by jury. It does not put the offender twice in jeopardy. It does not inflict a double...