Martinez v. State

• Decision Date: 05 December 1923
• Docket Number: (No. 7887.)
• Citation: 256 S.W. 289
• Parties: MARTINEZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 289

256 S.W. 289

MARTINEZ v. STATE.

(No. 7887.)

Court of Criminal Appeals of Texas.

December 5, 1923.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Santiago Martinez was convicted of statutory rape, and appeals. Reversed and remanded.

Virgil Parker, S. S. Beene, Milton M. Heath, and Frank R. Graves, all of Fort Worth, for appellant.

R. K. Hanger, Dist. Atty., W. H. Tolbert and Julian B. Mastin, Asst. Dist. Attys., all of Fort Worth, Tom Garrard, State's Atty., of Midland, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

LATTIMORE, J.

Appellant was convicted of statutory rape in the criminal district court of Tarrant county, and his punishment fixed at 50 years in the penitentiary.

The parties to the transaction were all Mexicans, the prosecutrix being a little girl 8 years of age and appellant a young Mexican 20 years old. Prosecutrix testified that twice on the 17th of September, 1922, appellant penetrated her person to a limited degree with his privates, one occasion being in a car and the other near her mother's home. It was shown by the state's testimony that from some cause the child soon thereafter developed a severe case of gonorrhea. Physicians who examined appellant's person when arrested testified that he was afflicted with said disease. A confession of the appellant, taken while in jail through an interpreter, was admitted.

The state relied in part on said written and signed confession of the appellant. It is made to appear that he is unable to speak or to read the English language. Soon after being placed in jail, an assistant district attorney of Tarrant county sent for appellant, brought him to his office, and there took the alleged confession, aided by a man named Tepfer who was shown on the trial to be at that time a police officer in the city of Fort Worth. The alleged confession was entirely in answer to questions propounded in English by said attorney, same being translated by Tepfer into Spanish or Mexican, and the answers of appellant being given in that language, and in turn translated by Tepfer into English, and then written down by said attorney. When completed said confession thus written in English was read in Mexican to appellant by Tepfer. Appellant then signed the document, Tepfer signing as a witness. Tepfer was present as a witness for the state upon this trial, apparently for the purpose of establishing the fact of the fairness and correctness of said confession. The truthfulness of the statements in said confession, as well as the fairness and correctness in the interpretations of his answers, were challenged by appellant while a witness in his own behalf.

The rule was invoked as to all the witnesses by the appellant. Tepfer was excused from the rule over objection. The bill evidencing this matter is qualified by the statement of the learned trial judge to the effect that Tepfer was an officer, and was only permitted to remain in the room a part of the time, and, when any witness was giving testimony about which Tepfer could possibly know, he was sent out of the room. We know of no authority holding that police officers by reason of such office are entitled to be excused from the rule. The contrary seems true. Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 351. In such case, however, abuse of the lower court's discretion will not be presumed, but must be shown, and, it appearing without dispute that when any matter was being given in testimony about which Tepfer could have known, he was sent from the room, such abuse of discretion does not appear. It is stated that the purpose of the rule is to prevent the testimony of one witness from being influenced by that of another. Jones v. State, 3 Tex. App. 150; McMillan v. State, 7 Tex. App. 142. If the court in fact sent the witness out when any matter relative to said confession was being introduced, this would seem to serve the purpose stated. Tepfer was not a witness to the transaction itself, but to appellant's confession only.

Bill of exceptions No. 2 shows that when objection was made to Tepfer being excused from the rule the trial court said in the presence of the jury:

"I want the record to show that Mr. Tepfer is and has been for several years a peace officer; that the court has confidence in him as an interpreter, and the court requested said Tepfer to remain in the court room and to communicate to the court if at any time there is any misinterpretation made of the testimony by any interpreter, and it is for the purpose of safeguarding the rights of the defendant and of the rights of the state that the said witness is permitted by the court to remain in the courtroom; not for the purpose of assisting the prosecution, but for the purpose of assisting the court in seeing to it that the jury gets nothing but the truth."

Exception was reserved to said statement on the ground substantially that Tepfer's correctness and impartiality in interpreting the questions and answers constituting the alleged confession would be very material, and that the court's statement of his confidence in Tepfer as an interpreter and that his presence as such would be beneficial both to the state and the defendant, was prejudicial. As a matter of fact, when appellant took the stand he emphatically denied both the correctness and the fairness of Tepfer's interpretation as involved in the making of said confession, and swore that he did not make the statements in Mexican to Tepfer which appear in English in said confession. By the terms of article 787 of our Code of Criminal Procedure the trial judge is expressly forbidden to make any remark calculated to convey to the jury his opinion of the case. This is held to forbid any expression of his opinion as to the credibility of any witness. Taylor v. State, 38...