1. Since the defendant's motion for new trial fails to show what reasons, if any, were given at the trial as ground of his objection to testimony of a deaf mute through her son, as her sworn interpreter, the reasons which are set out in the amended motion for new trial, attacking the competency of such witness for reasons which the movant avers prompted him to make the objection, but which the motion for new trial fails to state were presented to the court at the time the motion to exclude the testimony was made, do not properly present any question for determination by this court. The reasons which the movant avers may have induced him to object, and the reasons if any which were then and there presented to the court as the grounds of his objection, cannot be taken as identical. Especially will the motion be construed as failing to state that the reasons for the excluding of the testimony were given to the court at the time the evidence was offered, when it is considered that it appears from the brief of evidence that the testimony upon which his reasons are based was not in point of fact given in connection with the objection now relied on, but had been elicited in previous testimony for the purpose of discrediting the credibility of another and different witness; and while the motion states that the motion to exclude was made "in view" of the facts which the brief of evidence shows had been thus elicited, there is nothing whatever in the motion to indicate that when the motion to exclude was made the attention of the court was actually directed to such facts previously elicited as the ground of his objection.
2. The above ruling disposes of the only assignment of error which is argued by brief of counsel for the plaintiff in error, and on which any sort of insistence is made; and since the evidence amply authorized the verdict finding the defendant guilty as charged in the indictment, the judgment is
Affirmed. All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.
No. 16099. FEBRUARY 12, 1948.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
The only ground of the motion for new trial which is argued by brief of counsel for the plaintiff in error, or on which any sort of insistence is made, relates to the question of competency of a deaf and dumb witness to testify through an interpreter, and is set out in the second ground of the amended motion in the following language: "Movant contends that the court erred in allowing the testimony of the witness, Annie Montgomery, testifying through A. G. Montgomery, as interpreter. During the
trial of the case, counsel for the plaintiff in error raised objections to allowing the testimony of Annie Montgomery, through the interpreter, A. G. Montgomery, her son, and that such objections were raised before such testimony was given and also the objections were reasserted after the testimony was given in court. Such objections were raised in view of the fact that Annie Montgomery is a deaf mute and has been so afflicted since birth. It was admitted by the prosecutor, A. G. Montgomery, that his mother can neither read nor write, and that neither he nor she has ever had any training in sign language. Therefore the plaintiff in error offers the following grounds as to the inadmissibility of the testimony." Thereupon counsel for the plaintiff in error sets forth legal argument and citation of authorities relied on to show the witness incompetent. The facts and admissions as thus set forth in the motion for new trial are seen to have been elicited, not when Annie Montgomery was offered as a witness and when the objection was made, but had been previously shown when the son, A. G. Montgomery, had testified without objection or motion to exclude with respect to declarations made by his mother to him; such facts as to the witness Annie Montgomery being apparently shown merely as throwing light on the weight to be given to such declarations. There was other evidence independent of that of the victim, Annie Montgomery, to the effect that the defendant knew where Annie Montgomery kept her money; that the defendant confessed the crime and directed the sheriff to return $17 of the $50 allegedly taken from the person of the victim, and stated that he would pay the rest of it; which confession was corroborated by another witness who positively identified the defendant as the person seen leaving the home of the victim at the approximate time the crime was alleged to have been committed.