Dissenting Opinion
Arterburn, J.I must dissent from one aspect of the majority opinion in this case, namely, that which holds that the trial court committed error in not ordering the State to furnish a list of all witnesses prior to defendant’s trial. I believe this changes the law in Indiana.
We are concerned here with the commission of a particularly vicious crime. A cab driver, Norman Boyce, who discovered the burglary, was shot three times in his back while telephoning the police. The identity of the defendant is conclusive, and the evidence that he committed the act is undisputed. He *697was charged by the state and convicted by a jury of assault and battery with intent to murder and with being an habitual criminal. The evidence shows conclusively that this felon (I say this advisedly) had previously been convicted in 1959 and in 1960 of vehicle taking. It is stated as a basis for the majority opinion that witnesses whose names were not endorsed on the indictment were used at the trial, and therefore the appellant did not receive a fair trial. I point out first, that most of these witnesses were officers who were used to identify the defendant as being the felon who was in court and previously in prison for the two prior felonies under the charge of being an habitual criminal. It is difficult for me to understand how this defendant was surprised by such testimony and therefore did not receive a fair trial.
The defendant made a very simple motion in the trial court to be given a list of all the state’s witnesses. The motion did not allege any grounds therefor, such as surprise; nor the necessity of any continuance because the defendant was totally uninformed as to the evidence which the state expected to present. The defendant’s only argument on this point is based on the theory that he should have had a continuance to adequately prepare for trial, yet he did not ask for a continuance nor allege or show wherein he was surprised by any evidence.
The majority opinion holds that “it is self-evident” that the defendant was entitled to have such a list of witnesses, although it cites no cases from the State of Indiana. The opinion goes to such states as California and Michigan for support, but only to the extent that the granting of such a motion is discretionary with the trial court. Yet the majority opinion does not grant any discretion to the trial court, even if such were the law in Indiana. There is no showing of any factual basis for holding that the trial court abused or lacked discretion in denying this motion.
The resulting effect of the majority opinion is that in all cases where such a motion is refused, the trial court has *698committed error, without any showing of any facts under which the trial court abused its discretion.
As previously stated, this majority opinion goes to foreign states for law which holds that in this state such a petition must be granted to the defendant. It states: “It is apparent that providing a list of prosecuting witnesses prior to trial is in conformity with the intent and purpose” of the statute in Indiana. (Citing Burns’ Ind. Stat. Anno. § 9-903) It is interesting to note that the statute is not set out in the majority opinion, nor are any cases referred to which have interpreted this statute. Even the appellant, in his brief, admits that the only effect of this statute “is to prevent the state from obtaining a continuance on account of witnesses not endorsed” on the indictment or affidavit. Denton v. State (1965), 246 Ind. 155, 203 N. E. 2d 539; Stevens v. State (1959), 240 Ind. 19, 158 N. E. 2d 174; Sieberry v. State (1892), 133 Ind. 677, 33 N. E. 681.
The statute which the majority opinion says requires the State to furnish a list to the defendant on request reads as follows:
“Names of witnesses.—When an indictment is presented by the grand jury, the names of all the material witnesses must be indorsed upon the indictment; but other witnesses may afterwards be subpoenaed by the state; but unless the names of such witnesses be indorsed on the indictment at the time it is presented, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed.” Acts 1905, ch. 169, § 112, p. 584, being Burns’ Ind. Stat. Anno. § 9-903.
A similar and relevant statute also provides:
“Prosecutor’s approval—Witnesses—Continuance.—When any such affidavit has been made, as provided in the last section, the prosecuting attorney shall approve the same by indorsement, using the words ‘approved by me’ and sign the same as such prosecuting attorney and indorse thereon the names of all the material witnesses; after which such affidavit shall be filed with the clerk, who shall indorse thereon *699the date of such filing, and record the same as in the case of an indictment, as provided in section one hundred and thirteen [§ 9-904] of this act. Other witnesses may after-wards be subpoenaed by the state; but unless the names of such witnesses be indorsed on the affidavit at the time it is filed, no continuance shall be granted to the state on account of the absence of any witness whose name is not thus indorsed. And the record of such affidavit and indorsements thereon, or a copy thereof certified to be a true copy by the clerk of the court, shall be sufficient evidence of the making and filing of such affidavit and the contents thereof; and the defendant may be tried upon such copy, all as provided in section one hundred and fifteen [§ 9-905] of this act in case of trial on copy of indictment.” Acts 1905, ch. 169, § 119, p. 584, being Burns’ Ind. Stat. Anno. § 9-909.
We find nothing in the statutes that says that on petition of the defendant the state is required to furnish a list of all witnesses and that it is reversible error for the trial court to refuse such request.
This Court has considered a similar question, namely, whether or not upon request of a defendant in a criminal case, the state must open up to the defendant all its files, including statements which it has taken from witnesses. In the consideration of such matters it has been stated that we are searching for the truth and for justice. This is the prime objective of a criminal proceeding. However, in order to get to the truth in a case and to have a fair trial, it is necessary to have the truth from both sides. We have stated that if one side must open up its files and disclose all of its evidence^ the other side should do so also in the interest of full disclosure and justice. Noel v. State (1966), 247 Ind. 426, 215 N. E. 2d 539; Anderson v. State (1959), 239 Ind. 372, 156 N. E. 2d 384.
Of course, I realize a defendant rarely would want to be placed upon such a basis of equality. Likewise it seems to me that if it is fair for the defendant to have a list of all the witnesses the state expects to present at a trial, then in the search for the truth and justice, the defendant should also *700tender a list of all witnesses he expects, to use at the trial. This new rule will really prevent getting to the truth if the state is prevented from using all its material witnesses.
It is admitted in the majority opinion that there is no constitutional provision which requires either party in a criminal case to present a list of its witnesses. In holding the state must reveal its evidence and its witnesses and the defendant may refuse where there is no constitutional provision requiring such one-sided attitude, we are placing merely one more roadblock and technicality in the way of justice and in the way of the objective of punishing the quilty and freeing the innocent.
In this case the evidence shows, without contradiction, that this defendant is guilty of a horrible crime, yet it seems to me this Court is creating a new technicality and changing the law which has existed in Indiana for more than half a century, and thus reversing his conviction.
A new rule such as promulgated in the majority opinion will merely open up numerous new technical questions in criminal cases. Query situations where a prosecutor discovers a witness during the trial who has not been listed, or needs a witness to rebut a fact arising in the trial, or has newly discovered evidence, or knows of a witness prior to trial but does not think he needs such witness and thereafter decides he does? Whatever action or ruling the trial court takes in such situations will be a question for appeal and additional technicalities. Upon the failure to use a witness listed, it will be argued there is a presumption against the state and that the evidence would be against the state. On the other hand, the use of a witness not listed if the court grants it, will be argued, was. a surprise.
It seems to me the law has been working fairly well in Indiana, and it is unnecessary for us to walk with our eyes open into a new thicket of technicalities for the trial courts to deal with.
*701The trial court acted properly under the law at the time it ruled in this case. If the Supreme Court desired to change trial procedure, it could have done so more justly by promulgating a new rule of trial procedure by requiring a list of witnesses be submitted by both sides, to be effective on a fixed date. That would have been a more orderly method; then trial courts would not be taken by surprise, old convictions not be upset and this felon’s conviction not be reversed on a technicality and the case sent back for retrial at great expense and time.
It is my view that it is not our function as a Court to add to or change a statute which has acquired definite and fixed meaning through the years which would result in retroactive application. We should not be what are commonly called “Activists”—judges imbued with the idea of changing the laws or the constitution.
I feel the judgment of conviction should be affirmed.
Note.—Reported in 230 N. E. 2d 536.