(dissenting) — This appeal presents an issue of first impression in this state. I dissent to the majority opinion for the following reasons:
(1) The trial court granted to one accused of having committed a crime the right to be informed of the contents *110and nature of certain documentary evidence in the files of the prosecuting attorney.
Both the state and federal constitutions guarantee to- a defendant, inter alia, the right to be informed of the nature of the accusation against him and to be furnished a copy thereof. The majority opinion does not cite any constitutional provision, statute, or court rule that grants to a defendant the right, before trial, to be informed of the nature of the state’s evidence. It was not until court rules were regularly adopted- that discovery procedure was permitted in this state in civil cases. Neither the legislature, nor this court by the exercise of its rule-making power, has extended discovery procedure to include criminal cases.
In reviewing a request for similar information, Judge Benjamin Cardozo, speaking for the highest tribunal in New York state, said:
“ . . . The documents to be exhibited to this defendant are not evidence for any one. They are merely mnemonic instruments whereby the prosecutor may be better able to elicit evidence hereafter. A mandate giving them publicity is something more than error in the exercise of power. It is an assumption of power where none has been confided [citing cases].” (Italics mine.) People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 156 N. E. 84, 52 A. L. R. 200 (1927).
' In my opinion, the trial court, in the instant case, assumed power where none had been conferred. It had no legal authority to order the prosecuting attorney to furnish to the defendant copies of the documentary evidence requested.
(2) In State v. Petersen, 47 Wn. (2d) 836, 289 P. (2d) 1013 (1955), we decided the issue with reference to an autopsy report in the files of the prosecuting attorney. In that case we said:
“We conclude . ,. . that such a report would remain confidential while in the possession of the prosecuting attorney, unless the legislature has provided elsewhere that others may-obtain it from the prosecutor. We have found no enactment to the latter effect.
“We nc)te in passing that our interpretation of the pertinent. statutes is in harmony with the general rule (sup*111ported by the weight of authority) to the effect that an accused may not have access, as a 'matter of right, to evidence in the possession of the prosecution. [Citing cases.]” (Italics mine.)
We unanimously held, in the Petersen case, that the trial court lacked legislative authority to order the prosecuting attorney to furnish a copy of an autopsy report, and that the accused could not obtain it “as a matter of right.” This court’s reasoning in the Petersen case is apropos to, and should be decisive of, the issue presented here.
(3) I do not agree with the majority that the matter relating to the autopsy report in the Petersen opinion was dictum. Dictum is a judicial observation or remark which is not necessary to the determination of any issue in the case. State ex rel. Lemon v. Langlie, 45 Wn. (2d) 82, 89, 273 P. (2d) 464 (1954). In the Petersen case, the trial court ordered the criminal proceeding abated because the prosecuting attorney refused to furnish the defendant with a copy of the autopsy report. We held that the refusal was not a ground for abatement, because “such a report is confidential in the hands of the prosecutor, and he would be violating the mandate of the statute by giving respondents such a copy.” The determination of the question relating to the autopsy report was crucial and decisive of the court’s lack of authority to abate the proceeding. Applying the definition announced in State ex rel. Lemon v. Langlie, supra, the paragraphs in the Petersen case relating to the autopsy report were necessary to the decision and, therefore, not dictum.
In my opinion, the trial court’s order should be quashed.
Mallery, Hill, and Foster, JJ., concur with Ott, J.