I concur in the result reached by the majority solely upon the ground that the trial judge was advised by the affidavits, applications and orders for subpoenas to witnesses, that the witnesses required by appellant, who were excluded from testifying by the trial judge, were probably material witnesses, both of whom had been allowed and ordered by the court, and the state did not claim surprise.
Under the spirit of our decisions in the cases of State v.Sickles, 144 Wash. 236, 257 P. 385, and State v. Adams, Id. 699, 257 P. 387, the reversal and granting a new trial herein is proper, because the trial court did not inquire into the reason for the failure to serve the list of witnesses by appellant and exercise its discretion as to whether the witnesses should be allowed to testify, notwithstanding such failure.
In the Sickles case, supra, in order to sustain the validity of the statute, in consonance with well known rules of construction that a statute will not be invalidated if it can be given a reasonable construction which will not violate a constitutional provision, it was necessary to declare the statute directory and not mandatory *Page 191 so as to secure the constitutional rights of the accused under Art. I, § 22, of the state constitution. The reason given, which is stated by the majority not to have been necessary to a decision of the case, was the reason for sustaining the validity of the statute. The constitution also prescribes our duty in Art. IV, § 2, that all decisions shall be given in writing, and the grounds of the decision shall be stated.
I am unable to concur in the statements of the majority regarding what can be done by a trial court in the exercise of disciplinary powers in the trial of a criminal case, especially a felony prosecution. It is at once apparent that, where the case is important and the defense very vigorous, the accused and his attorney might soon be at war with the trial court. Trial judges will often be sorely tried. What disciplinary powers the trial court should exercise in such cases is very vague and uncertain. This will inevitably induce more errors, more appeals, and more reversals. It would be much better, in my opinion, to leave what is said by the majority in reference thereto, unsaid.