State v. Sickles

• Decision Date: 29 June 1927
• Docket Number: 20485.
• Citation: 257 P. 385,144 Wash. 236
• Parties: STATE v. SICKLES.
• Court: Washington Supreme Court

257 P. 385

144 Wash. 236

STATE v. SICKLES.

No. 20485.

Supreme Court of Washington

June 29, 1927

Department 2.

Appeal from Superior Court, King County; Findley, Judge.

E. L Sickles was convicted of a felony, and from an order granting him a new trial, the State appeals. Affirmed.

Ewing D. Colvin and Harry A. Rhodes, both of Seattle, for the state.

Henry Clay Agnew, of Seattle, for respondent.

HOLCOMB J.

The state appeals in this case from an order granting a new trial to the defendant in a felony prosecution.

The appeal involves the question as to the validity of section 2 Laws of Extraordinary Session of 1925, p. 420, amending section 2050, Rem. Comp. Stat. Section 2 reads as follows:

'Sec. 2. That section 2050 of Remington's Compiled Statutes of Washington be amended to read as follows:

'Section 2050. 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 name 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 be 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.'

In accordance with the statute the state served the defendant with a list of its witnesses by indorsing the same on the information. This was a sufficient compliance with the statute. The defendant served no list of witnesses upon the state. A jury was impaneled and sworn to try the case, and the state put in its evidence, calling no witnesses except those indorsed on the information. The defendant then testified on his own behalf without any objection on the part of the state. After he had testified, he sought to call other witnesses in his behalf. The state objected to the reception of this testimony on the ground that he had not complied with the statute above quoted, in that he had served no list of witnesses upon the prosecuting attorney. The court sustained the objection of the prosecuting attorney, and five witnesses proposed to be called by defendant were excluded from testifying. The case was submitted to the jury, which found the defendant guilty. Defendant moved for a new trial, which the court granted, upon the ground that the statute requiring the defendant to furnish the state a list of witnesses was unconstitutional. In the order the court recited that a new trial was granted solely upon the ground that section 2050, as amended by chapter 150, Laws of the Extraordinary Session of 1925, p. 420, in so far as it required the defendant to file a list of witnesses, is unconstitutional, it being the view of the court that the provision is mandatory. The court further stated that the ruling was made because the court believed it was in error at the trial in excluding the testimony of defendant's witnesses, and that this order granting a new trial was made solely upon the grounds therein stated, and for no other reason, and was not made in any manner as a matter of discretion of the trial court.

In arguing the one assignment of error, that the court erred in granting defendant's motion for a new trial, appellant asserts that the statute is valid, but cites no nearer authority for the same than the decisions of this court, beginning with State v. Wilson, 69 Wash. 235, 124 P. 1125, upon the statute of 1907, governing the matter of procedure in cases where the defense of insanity is interposed (section 2174, Rem. Comp. Stat.), which requires the defense of insanity to be set up by a special plea before trial, excepting in cases where the insanity was not discovered, but, in any event, before the submission of the case to the jury. It is stated that that statute, in effect, would prevent the defendant from calling witnesses in his behalf to establish his insanity, unless his insanity had been pleaded as provided for by the foregoing statute. But that statute dealt with a special defense. It did not deal with the general issue as to whether or not the person charged with a crime is, in fact, guilty of the crime charged.

A former statute more stringent than the one now before us, requiring the prosecuting attorney to indorse the names of witnesses on the information before trial and containing no express provision for the indorsement of any witnesses after the trial had begun, was before this court in State v. Bokien, 14 Wash. 403, 44 P. 889. We there held that the court could permit the indorsement of the names of witnesses by...