243 P. 894 | Cal. Ct. App. | 1926
Defendants were convicted of the crime of robbery. They appeal from the judgment of conviction and from an order of the trial court denying their motion for a new trial.
The prosecuting witness, and the sole witness as to the actual facts surrounding the robbery, was one Frank Ito, a Japanese. Over the objection of appellants the trial court required the examination of Ito by means of the English language, and not through an interpreter. It is contended that in this ruling the court abused its discretion. In order to make disposition of the point it will be necessary to quote somewhat voluminously from the record. After the oath had been administered to the witness and after a single question had been propounded to him on direct examination, one of the counsel for appellants asked and obtained leave to examine him in order to ascertain "if he understands what has taken place in the administration of this oath." The record then shows: "Q. Do you know what the Clerk in this Court just did to you? A. Yes. Q. What did he do? A. Today? Q. Yes, today. A. We have court today. Q. You understand thoroughly, of course, what the Clerk just administered to you? A. No, I don't know." At this point appellants objected "to this witness testifying." Thereupon the district attorney examined him thus: "Do you know what it means to take an oath? Do you understand what it means to take an oath that you just took, to hold up your hand and swear you will tell the truth? A. Yes, the date, the 30th of March. . . . [Q.] Do you know what it means to take an oath, to hold up your hand and swear you will tell the truth? A. Yes, the whole truth. Mr. Conlin: It has already been answered, your Honor. The 30th of March is his answer. The Court: This matter goes to the credibility of the witness; it should not go to exclude the testimony of the witness. . . . Mr. Murray [a Deputy District Attorney]: We might need an interpreter in this case. The Court: All right; proceed. Mr. Murray: Do you know, Mr. Ito, that you are to tell *170 the truth? A. To tell the truth. Q. Do you know it is a crime of perjury not to tell the truth? A. Yes, I tell the truth. Q. Do you know it is a crime not to tell the truth when you swear to God you will tell the truth? A. Sure, I will tell the truth. Q. Do you know that they will put you in jail if you don't tell the truth? A. I told all the truth. Q. But do you know that if you don't tell the truth they will put you in jail? A. Yes. Q. You know when you put your right hand up and swore you would tell the truth — A. Yes, I swore I would tell the truth. Q. Do you know what it means to hold your right hand up and swear you will tell the truth; do you know that is an oath? A. Yes, truth; I know. Q. Do you understand what I say to you all the time? A. Sometimes I can't understand very good English. Q. Would you like to have an interpreter? A. I have an interpreter next door to my place. He talks pretty good English. Q. I know, but would you like to have an interpreter here in court today to interpret your language into English, Japanese into English and English into Japanese? A. Yes, I think interpreter is best. Q. Do you understand everything that counsel and myself have been saying here? A. No, I don't know. This is the first time I am in court. I don't know much. Mr. Murray: I think maybe, your Honor, it would be better to have an interpreter, although the witness speaks fairly good English. Mr. Conlin: Do you believe in a supreme being? A. Supreme man? Q. Do you believe in a supreme being? A. Do you mean a high court? Q. Yes, that is right. Mr. Murray: I submit that the witness doesn't understand what he is talking about. The Court: All right. Call an interpreter. Mr. Conlin: I will submit he don't, too. The Court: The Clerk advises me that it will take some time to get an interpreter, possibly until 2 o'clock. Now, regarding the objection to this witness testifying, Section 1879 of the Code of Civil Procedure provides that `all persons, without exception, otherwise than as specified in the next two sections, who, having organs of sense can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on *171 matters of religious belief.' The sections which contain the exceptions are those referring to persons of unsound mind and children under ten years of age, and so forth. Mr. Conlin: The first section the Court read is the one I based my objection upon, those that apparently do not perceive and cannot make known their perception. The Court: The belief in a supreme being is not essential. Mr. Conlin: No, but the principal objection was that he did not perceive what was going on and could not make known his perception. The Court: However, those are matters which the jurors may take into consideration in weighing the evidence, and for that reason the Court will let you proceed. Now, as to whether this man has organs of sense, it is apparent he has. Whether, perceiving, he can make known what his organs of sense disclose to him, the result of his perception, is a matter which we can determine after more careful investigation, after a little further proceeding. I am informed that this witness got ahead in the preliminary examination without an interpreter, and so I am willing to make an effort to proceed. If it appears later that it will be necessary to have an interpreter, why, we shall get one at 2 o'clock. You may proceed." The examination of the witness upon the merits of the cause was then taken up and concluded.
It will be observed from the portion of the record which is above set forth that there was a strange intermixture of legal questions involved in the discussion between the trial judge and counsel for appellants. Three separate points were by them entangled together. These were: First, was Ito competent as a witness under the terms of section 1879 of the Code of Civil Procedure? Second, did he comprehend the nature of the oath which the clerk administered to him? Third, did he understand and speak the English language? This last question is important under the provisions of section
[3] The question whether an interpreter shall be called for the purpose of rendering the testimony of a witness who does not understand the English language rests in the discretion of the trial court (People v. Morine,
We recite this testimony for the purpose of showing that the prosecuting witness had such a comprehension of the English language that the trial court was justified in denying the request that an interpreter be called to aid in the rendition of his testimony. [5] We have no doubt that the question as to his understanding of the language is to be solved upon an examination of his entire testimony, and not merely that part of it which had been developed when *177 the request was made. There were some matters in the cross-examination of the witness which aid in a slight degree the contention now made by appellants, but they are unconvincing when placed beside the rather graphic story of the crime as related on the direct examination. Moreover, the discrepancies and inaccuracies shown in the cross-examination are largely explainable upon grounds other than the lack of understanding of the English language on Ito's part. The court did not abuse its discretion in refusing to call an interpreter.
[6] We have not scrupled to quote somewhat extensively from the direct examination of the prosecuting witness — apparently, indeed, a necessary course in meeting the point involved in the failure of the trial court to call an interpreter — for the added reason that it bears upon another point made by appellants. It is insisted "that the verdict was contrary to the law and the evidence" in that the testimony of the prosecuting witness, standing alone, as it did, upon the main features of the case, was so confused and uncertain as to amount to nothing. We understand the contention to mean that, for the reasons stated, the evidence failed to support the verdict. This point falls to the ground upon a mere perusal of the portion of the direct examination of Ito which is above set forth.
Judgment and order affirmed.
Finlayson, P.J., and Craig, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 3, 1926. *178