MILLARD and HERMAN, JJ., dissent. 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 count, 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. *Page 181
Of 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. Ses., ch. 150, p. 420, § 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 name thereto, and at the time the case is set for trial theprosecuting attorney shall file with the clerk a list of thewitnesses which he intends to use at the trial and serve a copyof the same upon the defendant, and within five days thereafterthe defendant shall file with the clerk and serve upon theprosecuting attorney a list of the witnesses which the defendantintends to use at the trial. Either party may add such additionalnames 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."
[1] The names of the state's witnesses were all endorsed 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 *Page 182 26th of that month, on which date it was re-set 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 *Page 183 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.
[2] There have been other cases before this court involving the statute now attacked. In State v. Sickles, 144 Wash. 236,257 P. 385, 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. *Page 184 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 an accused person by Art. I, § 22, 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 § 22 of article I *Page 185 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 within 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 inquired into the reason for the failure to serve a list of witnesses, and then have exercised its discretion as to whether the witnesses should be allowed to testify notwithstanding such failure.
In State v. Lunsford, 163 Wash. 199, 300 P. 529, the testimony of only one witness out of several was excluded because the witness's name had not been included in any list previously served, and there was no offer of proof indicating what the witness's testimony would be. On an appeal after conviction, we held that it was not reversible error to refuse to receive the *Page 186 testimony of the witness, because it did not appear that the testimony would have been admissible. This holding was not really necessary, for the case was reversed upon another ground, and the question of receiving this witness's testimony would not be likely to arise at another trial.
The present case is the first one to come to this court in which (1) the defendant failed to serve a list of his witnesses, though (2) he knew of the witnesses and had the intention to call them long enough before the trial to have enabled him to serve a list; (3) he offered no excuse for his failure to serve a list; (4) witnesses for the defendant present at the trial, in response to subpoenas issued at the direction of the court, were not permitted to testify because no list had been served; (5) the defendant, in his offer of proof, stated what it was expected the witness would testify to, and (6) such testimony would have been competent and material and not cumulative to such an extent as to be objectionable; and (7) the state did not suggest that it would be at any disadvantage by reason of surprise or lack of opportunity to interview the witnesses or investigate their reputation and character.
Applying to this situation the doctrine of State v. Sickles and the other cases above cited, we do not hesitate to decide that the trial court abused its discretion in not allowing the rejected witnesses to testify; for the only purpose the statute was designed to serve — i.e., to guard the state against an unexpected defense or against inability to attack the testimony of unscrupulous witnesses — was not present in this case; and there was no reason whatever for penalizing the appellant for not complying with the statute, however inexcusable his neglect may have been, when his noncompliance put the state to no disadvantage. *Page 187
The respondent argues that this holding would render the statute meaningless and useless in every conceivable case, but with this we can not agree. If, in such a case as this, the state should claim surprise, it might become the duty of the court, not to declare that the appellant's evidence should not be received, but that the state should have a reasonable opportunity to prepare itself against surprise; for the constitution, by guaranteeing an accused person the right to defend himself and to compel the attendance of witnesses by the court's own process, necessarily gives him the right to have attending witnesses heard.
A claim of surprise by the state might require only a brief interruption of the trial or an adjournment until the next day; but situations and circumstances are conceivable in which several days might be required and a reassignment of the case for trial at a future date might be necessitated; and we are bound to consider all reasonably possible situations in which the constitutional guaranties may be invoked. Upon the resumption of a trial or at another trial, still other witnesses might be produced whose names had not been given to the prosecutor, and upon suggestion of surprise the same process would have to be repeated; and so on, until the accused's constitutional right to a speedy trial would be violated.
But even so, no court is justified in permitting those practicing before it to unduly or unreasonably delay its proceedings or to otherwise trifle with it. The superior courts have ample disciplinary powers, and if it be borne in mind that the statute directs the filing and service of a list of witnesses, but nowhere says that the penalty for a failure to comply shall be the denial of the constitutional right to produce witnesses, it is at once apparent that, by the exercise of its disciplinary *Page 188 powers, the court can and should compel obedience or punish suitably for the failure to obey the statute.
By exercising such disciplinary powers, prompt and orderly procedure can be maintained, the statute enforced and the constitution respected, so that no case shall be submitted for decision without all of the available material facts being made known to the trier of the facts, to the end that substantial justice shall be done.
The judgment is reversed, with directions to grant a new trial.
PARKER and MAIN, JJ., concur.