(dissenting) — I dissent.
The majority grants a new trial solely on the ground that the defendant was denied his right to compulsory process when the trial court refused to compel the attendance of three witnesses in response to a belated request by defense counsel. There was no showing whatsoever as to what these witnesses would testify, or as to what it was hoped they would testify.
Rule of Pleading, Practice and Procedure 101.16W provides:
Subpoenas for witnesses on behalf of. defendants in criminal cases shall not be issued except upon order of court. Application for such order shall be based upon the affidavit of the defendant or of his counsel showing the names of the witnesses, with their addresses, if known, and accompanied by a certificate of the defendant’s counsel that the testimony of such witnesses is material to the defense. Such application shall be made.not less.than five days before the date fixed for trial: Próvid,ed, That in cases of emergency the court may in its discretion shorten such time. (Italics mine). •••
The provisions of this rule are ignored by the majority. The only subpoenas that were ever issued .for those witnesses were over the signature of defense counsel. The ones last issued required attendance of the .persons on whom they were served at 9:30 a.m. on the last day of the trial. At that hour counsel knew that his desired witnesses were not present, yet not until 11:15 a.m. when he was ready to call his last witness (whose testimony he knew would be very brief) did he make any request of the trial court for a continuance, and for compulsory process to secure the desired witnesses.
The defendant not only completely failed to comply with the rule which we have quoted, but he likewise ignored the *260statute governing continuances: RCW 10.46.080.3 He could make no showing of any diligence, except that he had secured the service upon the desired witnesses of worthless subpoenas. There could be no showing of due diligence because he waited from 9:30 a.m., when he knew the desired witnesses had not responded to his subpoenas, until 11:15 a.m., when he was virtually ready to close his case, before bringing the matter to the attention of the trial court. Neither then, nor on his motion for a new trial, nor even on this appeal has there been any showing as to what the testimony of these witnesses would be.
On these facts it is impossible, in my view, to hold that the trial judge abused his discretion. It appears from the record that he had other matters scheduled beginning at 1:30 that afternoon and a continuance would have caused the postponement of those matters and resulting inconvenience. To hold that the court abused its discretion necessitates ignoring the provisions of both RPPP 101.16W and RCW 10.46.080.
The majority suggests that an emergency existed, because the desired witnesses had not responded to the subpoenas served upon them. This is not persuasive. Surely counsel was aware of the distinction as to who issues the subpoenas in civil and criminal cases.
The majority says that the subpoenas issued by the defense counsel,
[S]ave for being issued over the signature of counsel instead of the judge, met the requirements contemplated by Rule of Pleading, Practice and Procedure 101.16W, RCW vol. 0, for subpoenas to be issued on order of the *261court in criminal causes. Each subpoena had a boldly printed caveat to fail not at peril.
One gets the impression from this that, after all, who signs a subpoena is a trifling matter; maybe it wouldn’t even need to be signed by an attorney — the boldly printed caveat would still be there even if signed only by John Doe, or the almost equally well-known Richard Roe.
The majority say “on their face, the subpoenas, if unchallenged, seem legally adequate to compel attendance.”
But they were not unchallenged, they were challenged by the only people who ever had any cause to challenge them, i.e., the people on whom they were served. How do you more effectively challenge a subpoena than by failing to observe it? To make clear just how effective these subpoenas were, the majority should explain just how these people are to be punished for their conduct in failing to respond to the “boldly printed caveat” of the seemingly “legally adequate” subpoenas.
It is my view that the subpoenas served were impotent documents. The application for a continuance and for compulsory process were not timely made; there was no showing of due diligence; and there was no showing as to the substance of the testimony sought to be obtained. Had there been any showing as to what the testimony of the desired witnesses would have been (as the statute requires), the prosecuting attorney might have been willing to admit that such testimony would be given, “and that it be considered as actually given at the trial or offered and overruled as improper.” Under such circumstances, the statute requires that “the continuance shall not be granted.”
The requirements of the rule and the statute make for orderly procedure. The result of the majority opinion makes for procedural chaos.
I would affirm the trial court.
Finley, J., concurs with Hill, J.
RCW 10.46.080. “A continuance may be granted in any case on the ground of the absence of evidence on the motion of the defendant supported by affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it; and also the name and place of residence of the witness or witnesses; and the substance of the evidence expected to be obtained, and if the prosecuting attorney admit that such evidence would be given, and that it be considered as actually given on the trial or offered and overruled as improper the continuance shall not be granted. [Code of 1881, § 1077; 1877 p 206 § 7 . . . ]” (Italics mine.)