Itow

The plaintiffs in error were indicted for the murder of Frank Dunn. Itow was convicted of murder in the first degree, and Fushimi was convicted of manslaughter. . Error is assigned to the refusal of the trial court to grant a continuance for which application was made by the defendants’ counsel, on the ground that necessary witnesses subpoenaed in Seattle and Portland had not arrived at the place .of trial; and it is. contended *304 thát by the denial of the application the defendants were deprived of a substantial right, the right of affording their counsel opportunity to examine these witnesses before the trial, and to acquire information from which he could make an opening statement of the defendants’ case to the jury, the fact being that on account of those circumstances no opening statement was made. The indictment was found December 13, 1912. On December 20th the defendants applied for process to compel the attendance of witnesses alleged to be in Seattle and Portland. The case was set for trial on January 2, 1913. Continuance was then requested, and it was stated that the defendants’ witnesses had started from Seattle and were on their way. The court ruled that the jury…