18 Wash. 47, 50 P. 580 STATE V. WILLIAMS (S. Ct. 1897).

           THE STATE OF WASHINGTON, Respondent,
                    A. F. WILLIAMS, Appellant

                          No. 2648
18 Wash. 47, 50 P. 580
                    October 22, 1897, Decided

Appeal from Superior Court, Whitman County. -- Hon. WILLIAM
                     McDONALD, Judge.

Failure of appellant in a criminal case to file his brief within
the required time is excusable, when the counsel who appeared for
him had removed from the state, and appellant, who was confined
in jail, procured the brief to be filed as soon as he learned of
the omission.
Under art. 1, 22 of the constitution, guaranteeing to persons
prosecuted for crime the right to have compulsory process to
compel the attendance of witnesses in their behalf, it is error
for the court to refuse to grant a continuance to procure the
presence in person of a material witness for defendant, when
proper application has been made therefor.
Under art. 1, 22 of the constitution, declaring that, "in
criminal prosecutions the accused shall have the right to appear
and defend in person," and under the common law of England,
adopted into our code so far as applicable, it is error to keep
the accused in manacles during the progress of the trial and in
the presence of the jury, unless it plainly appears that the
prisoner is such a dangerous character as to warrant such
It is error, likewise, to require a witness for accused to appear
in court fettered and manacled to another person, although he had
been charged with the crime jointly with the accused and had been
found guilty upon a prior and separate trial.

John F. Dillon, for appellant.
John W. Mathews, for The State.

concur. REAVIS
{*48} Appellant was convicted, in the superior court of Whitman
county, of the crime of burglary. The prosecuting attorney
appears on behalf of the state and moves to dismiss the appeal
because appellant's brief was not filed in due time. It appears
that the time within which appellant's brief ought to have been
filed expired on the second day of June, 1897, and that the brief
was not filed until the 23d day of the same month. But the
counsel who appeared for the defendant at the trial had removed
from the state before the brief was filed. The defendant was at
the time confined in jail, and so soon as he learned that the
brief was not filed within the proper time, procured it to be
filed. The question not being one of the jurisdiction of the
appeal, the appellant's excuse for failure to file his brief
within the proper time is deemed sufficient, and the motion to
dismiss denied.
The first error assigned by appellant is the refusal of the court
to grant a continuance on appellant's application because of the
absence of a material witness for appellant. The affidavit, while
rather general in its statement of the facts, seems to be
sufficient to have entitled appellant to further time. But as
this question is not likely to arise upon a new trial, it is not
necessary to further notice this objection than to observe that
sec. 22, art. 1 of the state constitution, guarantees to persons
prosecuted for crime the right to have compulsory process to
compel the attendance of witnesses in their behalf, and under
this constitutional guaranty the accused has the right to
compulsory process to procure the physical attendance of the
witness at the trial.
It appears that during the trial the defendant was brought into
court and kept there in manacles until, upon protest of
defendant's counsel, the manacles were finally removed, {*49}
but after a considerable period of time had elapsed. And further,
that during the progress of the trial and when it was very dark
out of doors, at the state's request, a view of the premises,
which were alleged to have been entered burglariously by the
defendant, was ordered by the court, and that, in the presence of
the jury, manacles were placed upon the defendant, and he was
ordered by the court to go with the jury to the place of the
alleged burglary, and while so manacled he went with the jury a
distance of three or four blocks from the courthouse and returned
to the court, when the trial proceeded and defendant was
permitted to remain manacled until, at his request, the court
ordered the manacles removed. It also further appears from the
record that one Bates and one Helen, who were jointly charged
with the same crime as the defendant, had been theretofore tried
in the court and found guilty; that at defendant's request Bates
was called to testify as a witness for defendant, and when Bates
was brought into the courtroom to testify, and at the request of
the prosecuting attorney, Helen was brought into court to remain
in the presence of the jury during the time that Bates was
testifying; that after Bates had given his testimony, he and
Helen were manacled together in the presence of the court and
jury, and that defendant protested against Bates and Helen being
allowed to remain in the courtroom in the presence of the jury
manacled, and requested the court to order the manacles removed.
The court refused the request.
It was the ancient rule at common law that a prisoner brought
into the presence of the court for trial, upon a plea of not
guilty to an indictment, was entitled to appear free of all
manner of shackles or bonds, and, prior to 1722, when a prisoner
was arraigned or appeared at the bar of the court to plead, he
was presented without manacles or bonds, unless there was evident
danger of his escape. 2 Hale's Pleas {*50} of the Crown, 219; 4
Blackstone Commentaries, 322; Layer's Case, 6 State Trials (4th
ed. by Hargrave), 230, 231, 244, 245; Waite's Case, 1 Leach's
Cases in Crown Law, 36.
In J. Kelyng's Reports, Pleas of the Crown, adjudged in the reign
of Charles II, "it was resolved that when prisoners come to the
bar to be tried, their irons ought to be taken off, in that they
be not in any torture while they make their defense, be their
crime never so great. And accordingly upon the arraignment and
trial of Hewler and others, who were brought in irons, the court
commanded their irons to be taken off." The common law of England
was expressly adopted by legislative enactment at the first
session of the legislative assembly of this territory, and there
is no doubt that the ancient right of one accused of crime under
an indictment or information to appear in court unfettered, is
still preserved in all its original vigor in this state.
In State v. Kring, 64 Mo. 591, the prisoner was convicted of
murder in the first degree. The plea of insanity was before the
court, and the defendant had some three months before assaulted a
person in open court. He was brought into the trial court
manacled, and remained some time in that condition. The supreme
court, in reversing the judgment of conviction, observed:
"We have no doubt of the power of the criminal court, at the
commencement, or during the progress of a trial, to make such
orders as may be necessary to secure a quiet and safe one, but
the facts stated by the court in this case, as shown by the
record, that the prisoner had assaulted a person in court, about
three months before the term at which he was tried, would hardly
authorize the court to assume that, on his trial for life, he
would be guilty of similar outrages. There must be some reason,
based on the conduct of the prisoner, at the time of the trial,
to authorize so important a right to be forfeited. When the court
allows a {*51} prisoner to be brought before a jury with his
hands chained in irons, and refuses, on his application, or that
of his counsel, to order their removal, the jury must necessarily
conceive a prejudice against the accused, as being in the opinion
of the judge a dangerous man, and one not to be trusted, even
under the surveillance of officers. Besides, the condition of the
prisoner in shackles may, to some extent, deprive him of the free
and calm use of all his faculties."
Section 22, art. 1, of our constitution, declares that, "In
criminal prosecutions the accused shall have the right to appear
and defend in person." The right here declared is to appear with
the use of not only his mental but his physical faculties
unfettered, and unless some impelling necessity demands the
restraint of a prisoner to secure the safety of others and his
own custody, the binding of the prisoner in irons is a plain
violation of the constitutional guaranty. When the witness Bates
was manacled to Helen and kept in court in the presence of the
jury against the protest of defendant, defendant's right to a
fair trial was impaired. It can hardly be conceived that there
was any necessity for this incident to the trial; none appears in
the record. 1 Bishop, Criminal Procedure, 955; Wharton,
Criminal Pleading and Practice, 540; People v. Harrington, 42
Cal. 165 (10 Am. Rep. 296); State v. Smith, 11 Ore. 205 (8 P.
The case is reversed.