State v. Bossio

(dissenting) — I am unable to agree with the decision of the majority on errors four to eight.

The disclaimer by the deputy prosecuting attorney referred to in the prevailing opinion should not be held to be legal surprise. The facts as to that were that the deputy prosecuting attorney could not truthfully have otherwise stated than that he was not actually surprised, because of the fact that the witnesses had presented themselves to him once in the company of the attorney for appellants, and once without the attorney, and stated to him that they were unable to recall the facts of the case.…