State v. Powers

CourtUnited States State Supreme Court of Iowa
Citation181 Iowa 452,164 N.W. 856
Docket NumberNo. 31561.,31561.
PartiesSTATE v. POWERS.
Decision Date25 October 1917

OPINION TEXT STARTS HERE

Appeal from District Court, Carroll County; E. G. Albert, Judge.

Indictment charging assault with intent to commit rape. Defendant was found guilty as charged, and appeals. Reversed.Brown McCrary and Ralph Maclean, both of Carroll, for appellant.

George Cosson, Atty. Gen., for the State.

SALINGER, J.

[1][2] I. The grand jury impaneled for the year 1915 consisted of 12 persons until the February term of that year, when one of the members of that body was dismissed by the court for the rest of the year. No one has been drawn to fill the vacancy thus created. The panel which indicted this defendant had its 7 members drawn from this 11, and it is urged that drawing from the 12 is essential to a legal grand jury. While we think that a jury thus drawn is subject to challenge, we do not agree with the appellant that it is in law no grand jury at all, and that its acts are void though not challenged. The state relies upon section 5321 of the Code, which is that where one has been held to answer, if he does not appear and object to the impaneling of the grand jury at the time, he will be held to have waived objections thereto. In effect, the appellant concedes that this avoids his point if he has been held to answer within the meaning of the law, and he insists that this has not been done. As we gather the argument, this is said to be so because the committing magistrate concluded his record merely with the statement, “I have ordered that he be held to answer the same.” That is substantially in the language of the statute, which is: “I order that he be held to answer the same.” Code, § 5230. Upon the making of this order the defendant gave bond that he would appear “at the district court of Carroll county, Iowa, at the next term thereof, and answer said charge and abide the orders and judgment of said court.” The terms of court are fixed by law, and persons held to appear must take notice thereof. Code, § 232. We think he was bound to appear and answer at the term during which he was indicted. This being so, by failing to appear and challenge the panel he waived the point he now makes.

[3] II. The indictment is in this form:

“That said E. F. Powers on or about the 3rd day of September, A. D. 1915, in the County of Carroll, in the State of Iowa.

The said E. F. Powers on the 3rd day of September, A. D. 1915 did,” etc.

By objections to testimony, requests to charge, and by motion to direct, it was asserted that this indictment does not lay the venue in Carroll county, it being urged in support that there is no compliance with Code, § 5289, which requires the venue to be alleged in the charging part of the indictment, and that the indictment is insufficient under the rule that the venue must be expressly averred as distinguished from inference or suggestion (State v. Daily, 113 Iowa, 362, 85 N. W. 629), and that indictments may not be aided by intendment (State v. Ashpole, 127 Iowa, 680, 104 N. W. 281). Despite the paragraphing and punctuation as above shown, and which are what appellant relies upon, we think venue was clearly laid in Carroll county.

[4] 2a. We do not think that the indictment is open to the objection of duplicity for charging as distinct offenses assault with intent to rape, and also an assault with intent to carnally abuse.

[5] III. Six who became members of the jury against challenge said in the most positive way that they would fully understand what a witness testifying in the German language said; that they would proceed according to that understanding without regard to its translation by the interpreter. Four upon whom appellant was compelled to use peremptory challenges testified to the same effect. As we understand it, the state attempts to sustain the rulings holding that this state of mind did not disqualify, as follows: (1) It is neither claimed nor shown that anything was incorrectly interpreted. On the contrary, as the interpreter is an officer of the court, it is presumed he translated correctly. This being so, the jurors but heard told in German what the translator presented in English, wherefore, that their state of mind led them to follow the witness rather than the interpreter was without prejudice. (2) It is presumed the jury followed the interpreter because the court charged them to do so. Each of these men had said positively upon his oath that he would be controlled by what he heard the witness say in the foreign tongue, no matter what the interpreter said. To indulge a presumption that they followed the charge of the court is to presume that they did that which they swore they would not do. It gets nowhere to admit that the translation was correct so long as, though correct, the jurors did not follow it if, perchance, they thought it was incorrect. As the business of our courts is to be done in English, there can be no presumption that either defendant or his counsel or the court understood German. If it be presumed that they did, there is no machinery for making that understanding of use. What if defendant knows that the translation be in fact a true rendition of what the witness has said, how can defendant know that such is the opinion of the jurymen who had said they would do their own interpreting. Suppose, as translated, nothing is developed that calls for counterproof, but the understanding these jurors had does––what opportunity has the defendant to even know that he requires testimony which he could obtain and which might change the result if produced? Though there be a presumption that the interpreter translated aright, is there also one that all other men agree to that translation? We have indicated there is no machinery to meet this situation other than rejecting men in such frame of mind. When and how is the defendant to ascertain whether the jurors were agreeing with the interpreter, disagreeing with him, and, if so, in what way? How may he accomplish that the jury shall consider only what is in fact the testimony given in the German language.

The situation was greatly aggravated by refusing to compel an examination by question instead of lengthy statement in narrative form, which practically reduced objecting to motions to strike. The whole of it is fairly within Smith v. State, 42 Tex. 444, wherein, on trial of one charged with theft of an animal, the jury was permitted to leave the courtroom and inspect for themselves the animal alleged to have been stolen, with a view of thus solving in connection with the evidence detailed by witnesses the question of identity and ownership, and no evidence was detailed by any of them on their return into court as to what they discovered––and it was held that a verdict upon facts thus ascertained would be a finding on facts known only to the jury, not publicly developed on the trial––concerning which defendant had no opportunity to cross–examine them as witnesses, upon which defendant or his counsel had not been heard, and of which the judge had no information. We think that, clearly, these six should not have been permitted to serve.

One juror who was permitted to serve did not go so far as this. He simply said he needed no interpreter for a German witness because he would know without one what was testified to; that he would notice whether the interpreter gave the right interpretation and would be inclined to proceed on the testimony of the witness regardless of the interpreter. As said, this is not so flagrant. But even he was a manifest threat to fair trial. And material for jury is not so scarce as to require retaining him. At the least, there was a manifest doubt as to his qualification, and it certainly was the safe and better course to have resolved the manifest doubt in favor of exclusion. See State v. Teale, 154 Iowa, 677, 135 N. W. 408;State v. John, 124 Iowa, 230, 100 N. W. 193;State v. Crofford, 121 Iowa, 395, 96 N. W. 889.

One of the jurors who was permitted to serve, and one who said he would be controlled by the witness, said at first that he could not write English. Under some pressure he modified it by saying that he could, but not very well, and that he never learned to read the English language much. What we have said just preceding this applies here. Nothing cited runs counter to our conclusions. State v. Smith, 124 Iowa, 334, 100 N. W. 40, affirms sustaining a challenge interposed by the state as being no abuse of discretion. State v. Brown, 130 Iowa, 57, 106 N. W. 379, holds merely that if a juror is not shown to have formed or expressed such an opinion of guilt or innocence as to prevent rendering a true verdict on the evidence, the discretion of the court in overruling a challenge will not be interfered with.

[6] IV. It is said the court erred in ruling that the interpreter was not in such sense a witness as that he might not testify without having his name indorsed upon the indictment. As to the only objection, we find ruling was reserved, and none ever made. Be that as it may, we are of opinion that the interpreter is not in such sense a witness. See Standard Dictionary, Definitions of “Interpreter” and “Witness.”

[7] V. It is contended that taking testimony through an interpreter is receiving hearsay testimony. We think the great weight of authority is against this claim. See 1 Wharton, Evidence (1877) § 174; Fabrigas v. Mostyn, 20 How's State Trials, 123; McCormicks v. Fuller, 56 Iowa 43, 8 N. W. 800;Camerlin v. Palmer, 92 Mass. (10 Allen) 539;People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73;Commonwealth ex rel. Girard v. Sanson, 67 Pa. 322;Swift v. Applebone, 23 Mich. 253. The only case we can find even leaning to the contrary is Diener v. Schley, 5 Wis. 483, to the effect that while the interpreter may be made an agent so that what he says on behalf of his principal is not hearsay, he is not necessarily such agent, and is not made so merely by the fact that his alleged principal is dealing...

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