53 Wash. 294 | Wash. | 1909
The defendant, a Chinaman, was informed against May 2, 1908, for the crime of murder in the first degree. May 18 a plea of not guilty was interposed. On May 28, the defendant filed a special plea of mental irresponsibility. On the said day the case was assigned for trial on June 1, 1908. On May 28, the defendant, through counsel, moved to vacate the assignment for June 1, and for a continuance over the term, or to such later date in the term as would enable counsel to prepare for trial, basing the motion on the record in said cause and the affidavit of one of defendant’s counsel. This motion was denied. The defendant excepted. Thereafter, on June 1, the case was tried before a jury, who returned a verdict for manslaughter. Sentence was imposed, and defendant appeals to this court from the judgment and proceedings.
The only assignment of error is that it was prejudicial error for the court to deny the continuance asked by the appellant, the result of which was to deny the appellant a fair trial. The usual assignment, that the court erred in denying
“There is nothing to show that they [the affidavits] were all presented or read to the court below on the hearing of the motion, and in order to entitle them to consideration here the fact that they were so presented should have been certified to by the court in some manner, and the motion to strike them is granted.”
In State v. Howard, 15 Wash. 425, 46 Pac. 650, the same doctrine was announced, the court, in the course of its opinion, saying:
“It is not enough that such papers have been filed by counsel with the clerk of the superior court . . . The act of filing is ex parte and all such papers (other than the technical record or judgment roll) upon which reliance is had in this court, or to which the attention of this court is to be directed upon appeal, should be brought into the record by an appropriate bill of exceptions or statement of facts.”
The same doctrine was announced in Jacobson v. Lunn, 16 Wash. 487, 48 Pac. 237; Norfor v. Busby, 19 Wash. 450, 53 Pac. 717; State v. Anderson, 20 Wash. 193, 55 Pac. 39, and Armstrong v. Van De Vanter, 21 Wash. 682, 59 Pac. 510.
It is true that, in State v. Vance, 29 Wash. 435, 70 Pac. 34, an affidavit which was not incorporated in the statement of facts was admitted and considered by this court. But that
The motion to dismiss will have to be sustained.
Ann Concur.