State v. Masato Karumai

• Court: Utah Supreme Court
• Writing for the Court: WADE, District Judge.
• Citation: State v. Masato Karumai, 126 P.2d 1047, 101 Utah 592 (Utah 1942)
• Decision Date: 11 June 1942
• Docket Number: 4449
• Parties: STATE v. MASATO KARUMAI

126 P.2d 1047

101 Utah 592

STATE v. MASATO KARUMAI

No. 4449

Supreme Court of Utah

June 11, 1942

Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.

Masato Karumai was convicted of murder in the first degree, and he appeals.

Affirmed.

Burton W. Musser and Herbert Van Dam, Jr., both of Salt Lake City for appellant.

Grover A. Giles, Atty. Gen., and A. John Brennan and Herbert F Smart, Deputy Attys. Gen., for respondent.

WADE District Judge. MOFFAT, C. J., and WOLFE, LARSON, and McDONOUGH, JJ., concur. PRATT, J., on leave of absence.

OPINION

WADE, District Judge.

On March 1, 1925, the defendant Masato Karumai, shot and killed one Yosaki Ishisaka in a back room of a Japanese Social Club operated by defendant's friend, one Honda, in Helper, Utah. A number of Japanese had gathered in the Club and had been playing a gambling game with buttons called Chico or Fan-Tan. Two Chinamen were operating the game, one dividing the buttons among the players and the other collecting the money. Ishisaka was one of the players, and a quarrel arose between him and the Chinaman who divided the buttons. Ishisaka was a large man; he accused the Chinaman of crookedness in dividing the buttons and demanded they be divided over again. This the Chinaman refused to do, and Ishisaka pounded the table with his fists, scattered the buttons, and fighting words passed between the two, causing confusion and loud noises. Ishisaka and the Chinaman faced each other--apparently to fight.

At this point there is a dispute in the evidence. The defendant, who was partially corroborated by Honda, claims that, to prevent a fight, he approached Ishisaka and took hold of his arm, whereupon Ishisaka kicked him violently in the groin, knocking him to the floor, causing severe pain, and saying, "I'll kill you." While defendant was thus on the floor, Honda--the proprietor--having heard the noise, entered the room and took Ishisaka by the arm and, as he turned away from the defendant, the defendant drew his gun and shot Ishisaka twice in the back of the neck and head. Ishisaka fell dead instantly.

This testimony was controverted by five Japanese witnesses called by the State. Four of the witnesses were in the room during the entire time--could see all that happened-- and all of them saw the shooting. They testified that the defendant was not playing in the game and took no part in the quarrel, and that no words were directed toward him during the quarrel. They further testified that he was not kicked or knocked down but that when Honda came in and took hold of Ishisaka's arm (as Ishisaka and the Chinaman were ready to fight) the defendant--who was a mere spectator--drew his gun and shot Ishisaka without provocation.

Defendant's attorneys contend that defendant was unable to speak or to understand English and, since the trial was conducted in English and was not translated for him into his own language, he was denied the right of being confronted by the witnesses against him and the right of being present at the trial, and thus he had no preliminary hearing. Defendant did not waive a preliminary hearing and defendant's attorneys contend, therefore, that these proceedings did not constitute due process of law, and resulted in grave injustice. In order to understand just what happened it is necessary to make a detailed statement of the facts on this point.

A complaint was filed in the Justice's Court, charging the defendant and Honda jointly with murder in the first degree. When defendant was brought before the Justice on March 5, 1925, for arraignment, the complaint was read to him through an interpreter and he was informed--through an interpreter--of his right to counsel at every stage of the proceedings. At the preliminary hearing on March 17, 1925, the defendant and Honda appeared without counsel and demanded and were granted separate hearings. The defendant's preliminary hearing was held on that day. An interpreter translated the testimony of five Japanese witnesses, all eyewitnesses to the killing, but did not translate to defendant the testimony of the doctor or the sheriff, both of whom spoke in English. Such testimony was merely a description of the body when found, of the wounds thereon, and the cause of death. The defendant being bound over to the District Court, an information was filed charging him with murder in the first degree. M. P. Braffet appeared as defendant's attorney and by court order a transcript of the testimony at the preliminary hearing was made for him at the State's expense. At the first trial--commencing September 15, 1925--the jury failed to agree. On January 6, 1926, the Court appointed George J. Constantine to represent defendant at the next trial, and by Court order the testimony of the first trial was transcribed for defendant at the State's expense. The second trial commenced on January 25, 1926; the defendant appeared with his attorney and an interpreter was later subpoenaed at the defendant's request and at the State's expense. The jury was examined, the information was read, the opening statement of the District Attorney was made and three witnesses testified in English but none of this was translated to the defendant by an official interpreter. The State then called five Japanese witnesses and both the interpreter for the State and the defendant's interpreter were sworn to translate this testimony into English. The interpreter produced by the State did all the actual translating of the testimony of all the Japanese witnesses throughout the trial, but the defendant's interpreter remained throughout the trial and assisted and made suggestions to the defendant and his counsel.

This second trial resulted in a verdict of guilty of murder in the first degree, without recommendation, and defendant was sentenced to be executed. It is from this verdict that the defendant appealed to this Court. Before the appeal was perfected, the defendant's attorney withdrew and George E. Marshell appeared as defendant's attorney. But before the hearing in this Court, the defendant was adjudged insane and was committed to the Utah State Hospital. In 1934, he was discharged from that Institution and returned to the Utah State Prison, where he is now incarcerated. On August 6, 1941, this Court appointed Herbert Van Dam, Jr. and Burton W. Musser to represent defendant.

This brings us to the consideration of defendant's assignments of error based on the fact that the testimony of the English-speaking witnesses was not translated into Japanese. No request of the defendant for an interpreter was denied, and at each hearing the Court had an interpreter there and at the last trial the defendant had, in addition, his own interpreter to assist him and his counsel. The defendant was furnished--at the State's expense--transcripts of the testimony at the preliminary hearing and at both trials. Three different attorneys have represented the defendant prior to this appeal. Though these attorneys knew the defendant's ability--or lack of it--to speak and understand English, they made no complaint that the proceeding in English were not translated to him.

There is no direct testimony concerning defendant's ability to understand English and little concerning his ability to speak it. A person may understand much more than he speaks and may wish an interpreter when testifying, even though one is not necessary. The evidence tends to show that defendant had lived in America at least 18 years and part of that time he operated a restaurant in Nebraska. Deputy Sheriff Garrett testified that defendant answered his questions in English without hesitation, and Dr. Jones testified that defendant explained his physical condition in English. When on the witness stand, the defendant gave a different version of these conversations but he at no time made claim that he did not understand what was said. The record does not disclose that the defendant was so unable to understand the English language that he was thereby materially affected in any of the proceedings in this case in making his defense. All of defendant's arguments based on such a premise must therefore fail. State v. Vasquez, 101 Utah 444, 121 P.2d 903; Gonzales v. People of Virgin Islands, 3 Cir., 109 F.2d 215. The latter case also holds that failure to make timely objection waives the right to be confronted by the adverse witnesses.

To the effect that failure to furnish an interpreter does not violate defendant's constitutional right to be confronted by witnesses, see Zunago v. State, 63 Tex. Crim. 58, 138 S.W. 713, Ann. Cas. 1913D, 665; King v. Ah Har et al., 7 Hawai'i 319; Republic of Hawaii v. Yamane, 12 Hawai'i 189; Escobar v. State, 30 Ariz. 159, 245 P. 356.

Even though the Court erred in not furnishing an interpreter, the case will not be reversed unless it is shown that the defendant was prejudiced thereby in his defense. Rex v. Lee Kun, 1 K. B. 337, 9 Br. Rul. Cases 1121; Escobar v. State, supra.

In State v. Vasquez, supra , Justice Wolfe said:

"If it is shown that defendant cannot understand the language in which the testimony is given and knows no friend who would interpret between him and the witness or between him and his counsel in the court room, such facility might well be provided at the expense of the State."

In the instant case the suggestion of Justice Wolfe that the defendant might have a friend to interpret for him was evidently carried out to the satisfaction of all parties. There was no obligation--under the facts in this case--on the Court to do more.

In this type of case there is a serious possibility of grave injustice being done an accused by reason of his being unable to properly present his defense due to his inability to speak or...