64 P. 265 | Cal. | 1901
The appellant was convicted of murder in the first degree, and sentenced to life imprisonment; and he appeals from the judgment and from an order denying a motion for a new trial.
1. The main point made by appellant for a reversal is, that the court erred in denying his motion to set aside the indictment, made under section
The court did not err in denying the motion on the ground above stated. Waiving the absurdity of the proposition that the legislature intended that a grand jury should be precluded from inquiring into a public offense where the investigation made necessary the hearing of the testimony of witnesses who spoke only a foreign language, it is evident that the word "witnesses," used in section 925, includes interpreters. The provisions of the codes make the proposition sufficiently clear. The law of evidence is the same in criminal as in civil cases, except as otherwise provided in the Penal Code. (Pen. Code, sec. 1102.) A witness is described in the Code of Civil Procedure (sec. 1878) as follows: "A witness is a person whose declartion under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit"; and section 2005 provides that an oral examination is one where the testimony is heard "by the jury or tribunal from the lips of the witness." An interpreter "must be sworn." (Code Civ. Proc., sec. 1884.) He states, under oath, to the jury what the other witness said; and this is testimony, — as clearly such as the statement of any ordinary witness who testifies to the declaration or admissions of another person. In volume 17 of the American and English Encyclopaedia of Law, 2d ed., p. 30, it is said: "An interpreter, whether in the trial of a case in court, or as interpreter of a witness giving his deposition, must give his testimony under oath. In either case he is a witness, and there is every reason for saying that the general rules which govern the testimony of other witnesses apply to him" (citing cases), and that "an interpreter is a witness, distinguished from the person whose testimony he interprets"; and again, on page 31: "The testimony of an interpreter, like the testimony of any other witness, may be impeached; his testimony goes to the jury under those rules of law by which the testimony of all witnesses is weighed." The authorities cited support these quotations from the text. Can there be any doubt that perjury could be assigned, where an interpreter had knowingly and feloniously sworn falsely as to what the other witness had said? Therefore, what essential of the definition of a witness does an interpreter *202
lack? That he is a witness, and that what he says under oath is testimony, is strikingly illustrated by the case of Schearer v.Harber,
2. The court did not err in admitting the dying declaration of the deceased, Hoey Goon. He was wounded through the vital parts of the body; he grew continuously weaker from the time of the wounds until he died about five or six hours afterwards; the physicians in attendance told him, or tried to tell him, through two interpreters, Loy and Mix, that he was going to die; Loy told him, "The doctors cannot do nothing for you, you have n't got no pulse." Mix, in answer to the question, "Well, did the doctors tell you to tell him he was going to die?" said, "The doctor told me the way he was wounded it was fatal." Loy testified: "He told me he was going to die. He said the shot in his leg did not hurt him much, but that he was going to die right there from the shot through his body," and said that "he expected to die," and that he "was not going to live." Mix testified that deceased said to him, "The way I am wounded, there is no hope for me." There was other evidence, and although the witnesses now and then used a word not quite so strong to the point of immediate dissolution as those above quoted, yet, taking all the evidence together, and considering all the attending circumstances, it was sufficiently shown that the deceased made the dying declaration under a sense of impending death.
3. The third instruction asked by appellant was properly refused. It assumes that the main case of the prosecution rested upon circumstantial evidence, which was not the fact. The main proof of the prosecution was the direct testimony of eye-witnesses, who testified that they saw the appellant shoot the deceased. Moreover, the substance of the instruction was given in other parts of the charge, and particularly in appellant's fifth instruction.
4. Appellant complains of the instructions of the court upon the subject of "flight." Appellant's counsel deals with one sentence of the charge by itself, and contends that it leaves out the proposition of the knowledge of the defendant, "either of the fact of the killing of the deceased, or that he (the defendant) was accused of the same." But the whole of the instruction must be considered, and the sentence immediately preceding the one objected to speaks of the flight of a person immediately after "the crime had been committed, with which he knows he is charged," and the whole instruction *204 is clearly based on this condition. Perhaps it would have been better in the beginning to have held that no instruction about flight should be given at all, and that the significance that should be attached to the fact of flight should be left entirely to the jury upon the arguments of counsel; but it is too late to hold that instructions on that subject are erroneous, for such instructions have been frequently approved. Moreover, the instruction as given in the case at bar was not prejudicial to appellant.
The four points above noticed are the only ones made by appellant.
The judgment and order appealed from are affirmed.
Henshaw, J., and Temple, J., concurred.