I am unable to agree with the majority in the reasons for granting the appellant a new trial, although I am in accord with the result reached.
In my opinion, § 2, chap. 150, p. 420, Laws of 1925, Ex. Ses. (Rem. 1927 Sup., § 2050), set out in the majority opinion, is unconstitutional. That section of the statute requires the prosecuting attorney, at the time the case is set for trial, to file with the clerk of the court a list of the witnesses which he intends to use at the trial, and serve a copy thereof upon the defendant; and requires the defendant, within five days thereafter, to file with the clerk and serve upon the prosecuting attorney a list of the witnesses which he intends to use at the trial. This statute is plain and unambiguous. It is very obvious that the legislature intended to penalize a defendant in a criminal action *Page 189 who fails to comply with this statute by preventing the witnesses called by him from testifying at the trial. I see no reason to suppose that the legislature did not mean what it said. To my mind, it is too plain for cavil that the penalty intended to be applied by the legislature is the rejection of the testimony of witnesses not listed as the statute requires.
Under § 22 of Article I of the state constitution, cited in the majority opinion, an accused person in a criminal action is guaranteed the right of compulsory process to compel the attendance of witnesses in his behalf. This constitutional provision imposes no restrictions or limitations upon this right. In order to hold the statute, § 2050, supra, constitutional, one would be forced to read into the constitution that a defendant in a criminal action shall be entitled to compulsory process, provided he file with the clerk and serve upon theprosecuting attorney a list of the witnesses whom he intends touse at the trial.
I do not wish to be understood as holding that a defendant in a criminal action may trifle with the orderly procedure of a trial of a criminal cause. However, I do wish to be understood as saying that a defendant in a criminal action under the constitution is guaranteed the right to compulsory process at any stage of the proceeding. In other words, the accused is entitled to compulsory process as a matter of right guaranteed to him by the constitution, which he may invoke at any time, even in the midst of a trial. This view finds support in § 29, Article I of the constitution, which reads:
"The provisions of this constitution are mandatory unless by express words they are declared to be otherwise."
The court, in holding the statute here under consideration to be constitutional, in the case of State v. *Page 190 Sickles, 144 Wash. 236, 257 P. 385, was forced to hold that the statute is merely directory and not mandatory.
"To construe the statute as mandatory instead of directory, preventing the exercise of any discretion on the part of the trial court in such cases, would certainly render the statute unconstitutional." State v. Sickles, supra.
I cannot agree that the statute is directory merely. Surely the legislature did not undertake to regulate that which the majority opinion holds to be purely procedural. If the legislature had intended the statute to be merely directory, they would have said so.