State v. Willis

• Decision Date: 26 October 1950
• Docket Number: 31374.
• Citation: State v. Willis, 37 Wn.2d 274, 223 P.2d 453 (Wash. 1950)
• Court: Washington Supreme Court
• Parties: STATE, v. WILLIS.

223 P.2d 453

37 Wn.2d 274

STATE, v. WILLIS.

No. 31374.

Supreme Court of Washington.

October 26, 1950

Department 2.

Orvin H. Messegee, Seattle, for appellant.

Charles O Carroll, T. P. Ulvestad, Seattle, for respondent.

GRADY, Justice.

The appellant was found guilty by a jury of burglary in the second degree and appeals from the judgment entered.

The assignments of error bring Before us for review rulings of the court (a) that the evidence was sufficient to sustain the verdict, (b) denying a request for a continuance of the trial upon permitting a witness whose name had not been endorsed on the information to testify, (c) admitting into evidence certain particles of glass, the sufficiency of their identity and testimony relative thereto, and (d) placing a limitation upon the time for argument to the jury.

(a) In view of our conclusion to reverse the judgment and remand the case for a new trial, we deem it inappropriate to refer to the evidence except in so far as may be necessary in deciding the questions raised by two of the assignments of error. It is sufficient to say that we have read the statement of facts having in mind the questions propounded to us by counsel in his brief, and, though the evidence was to a great extent circumstantial, it is our opinion that it was sufficient upon which to base a verdict of guilty and met the test prescribed by the court in instructions: 'The facts and circumstances relied upon should be consistent with each other, and with the guilt of the defendant. They should be inconsistent with any reasonable theory of innocence. They should be of such character as to exclude every reasonable hypothesis other than guilt', and cases we have decided such as State v. Kirkby, 20 Wash.2d 455, 147 P.2d 947; State v. Cranmer, 30 Wash.2d 576, 192 P.2d 331; State v. Gillingham, 33 Wash.2d 847, 207 P.2d 737. In two of these cases we made reference to State v. Pienick, 46 Wash. 522, 90 P. 645, upon which appellant relies. We recognized the doctrine of that case and others of like import, but considered them to be inapplicable to the facts of the cases then being considered. An examination of the cases indicates that the recognized rule is that whenever an appellate court is confronted with the question whether a chain of circumstances is sufficient to sustain a conviction of a criminal offense it must look into the record and determine whether the evidence is legally sufficient to take the case to the jury. If the court so determines, then the question whether such chain of circumstances excludes to a moral certainty every other reasonable hypothesis than that of guilt is for the jury; but if the court concludes that the evidence is not legally sufficient to sustain a conviction, then it must hold as a matter of law that there is no question for the jury to determine.

(b) The entry to the store building burglarized had been made by the breaking of glass. When appellant was apprehended particles of glass were found on the floor and one running board of the automobile he was driving, and particles were imbedded in the soles of his shoes. Samples of this glass and one or more pieces of the glass found on the store-room floor at the place of entry were sent by mail to the Federal Bureau of Investigation at Washington, D. C. The glass was examined compared and put to certain tests by experts in that field of study. The respondent concluded to call as a witness one of the experts who had made the examination, but did not seek an order of the court permitting the addition of his name to the list of witnesses furnished appellant. The appellant received no authentic information that an expert on glass was to be called as a witness until just Before respondent closed its case, when application was made that Roy Harold Jevons, who had arrived from Washington, D. C., the day Before , be permitted to testify. It appeared that the respondent had been aware of the report made by the Federal Bureau of Investigation of the examination of the samples of glass for three weeks, but did not know which expert would be sent to testify if request was made for such assistance. Appellant objected to the witness being allowed to testify, and a recess was taken to give counsel time in which to prepare to present the question involved. Counsel for appellant claimed surprise and urged that to permit the witness to testify would be prejudicial. He requested a continuance of the trial for one week if the court overruled his objection in order that he might prepare to cross examine the expert and secure any available rebuttal testimony. The court overruled the objection and denied the motion for a continuance of the trial, being of the opinion that the issue tendered had obviously been in the case from its inception and that expert testimony was available to appellant as it was to respondent. Our statute on the subject, Rem.Rev.Stat. § 2050, provides that when a criminal case is set for trial the prosecuting attorney shall file with the clerk of the court a list of the witnesses he intends to use at the trial and serve a copy of the same upon the defendant, and may add such additional names from time to time Before trial as the court may by order permit. The statute may be complied with by endorsing the names of the witnesses on the information. State v. Sickles, 144 Wash. 236, 257 P. 385; State v. Rose, 145 Wash. 634, 261 P. 391; State v. Martin, 165 Wash. 180, 4 P.2d 880. This was the requirement of the statute in force prior to 1925. We have decided that the court has the power to permit the state to endorse the names of witnesses on the information during the progress of the trial, or permit them to testify without such endorsement. State v. Bokien, 14 Wash. 403, 44 P. 889; State v. Leosis, 160 Wash. 176, 294 P. 1115; State v. Hogan, 29 Wash.2d 407, 187 P.2d 612. Many other cases have been decided to the same effect and may be found in 4 Wash. Digest, Criminal Law, §§ 628, 629. The requirement of the statute is designed to protect against surprise. State v. Cooper, 26 Wash.2d 405, 174 P.2d 545. If a defendant desires to avail himself of the statute when it is not complied with, or the state seeks to...