Terry v. State

• Decision Date: 04 August 1925
• Docket Number: 8 Div. 264
• Citation: 21 Ala.App. 100,105 So. 386
• Parties: TERRY v. STATE.
• Court: Alabama Court of Appeals

105 So. 386

21 Ala.App. 100

TERRY v. STATE.

8 Div. 264

Court of Appeals of Alabama

August 4, 1925

Rehearing Denied Aug. 11, 1925

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

Frank Terry was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.

G.O Chenault, of Albany, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

One of the principal questions presented calls for a construction of section 6 (Bill of Rights) of the Constitution of Alabama 1901. This section provides, among other things, that in all criminal prosecutions the accused has a right to be heard by himself and counsel, to demand the nature and cause of the accusation, and to be confronted by the witnesses against him; also to testify in his own behalf if he elects to do so nor shall he be deprived of life, liberty, or property except by due process of law, etc.

This defendant was charged with the offense of murder in the first degree. He was a deaf-mute and had been so from his birth. Not being able to speak or hear, the court was requested to appoint an interpreter so that defendant might be informed as to the nature and cause of the accusation against him, and also as to the testimony of the witnesses who appeared against him. In this connection the following occurred, as shown by the record:

"The defendant's attorney made known to the court that the defendant was deaf and dumb, could neither hear nor talk, and, as no interpreter had been sworn to interpret to the defendant, the indictment and the proceedings, defendant's attorney moved that said cause be continued until an interpreter could be procured and sworn. Said attorney stated to the court that it was the constitutional right of the defendant to be confronted by the witnesses against him, and that it was his idea that that meant that the defendant should be confronted in such a way as to be informed of what was taking place, and to know what the witnesses were saying, and to hear or be informed of the contents of the indictment. The court then offered to swear an interpreter for the defendant, if the defendant would furnish one or produce one to be sworn. The defendant's attorney stated to the court that he was unable to furnish an interpreter. The court then and there overruled the motion to postpone the trial to secure an interpreter. The defendant's attorney then and there excepted. The solicitor then read the indictment in the presence of the defendant, the defendant being unable to hear the same, and not entering any plea. The court then entered a plea of not guilty for the defendant. The defendant's attorney then requested that an interpretation of the indictment be made to the defendant before proceeding. The court then inquired of defendant's attorney if he had an interpreter, and, being answered in the negative, he directed the trial to proceed, to which defendant's attorney then reserved an exception. The defendant's attorney requested that an interpreter be furnished to communicate to the defendant the testimony of the witnesses as they go along. The court again announced that he would permit the defendant to have an interpreter. The defendant's attorney again stated that he was then unable to furnish any interpreter and that it was his theory that it was the duty of the state to let defendant understand what was going on. The court then directed the court reporter to let the record show that the court offered to swear an interpreter that the defendant may furnish, and that the defendant failed or refused to furnish one. The defendant's attorney stated to the court that he did not refuse to furnish an interpreter, and the court stated that he failed or refused, one or the other. It was then admitted in open court that the defendant was deaf and dumb."

The exceptions here reserved were well taken, and must be sustained. As stated, the Constitution of this state expressly provides that an accused has a right to be heard by himself and counsel, also, to demand the nature and cause of the accusation against him, and, further to be confronted by the witnesses who are to testify against him. In construing this constitutional provision it needs no discussion in deciding that all this must be done in a manner by which the accused can know, the nature and cause of the accusation he is called upon to answer, and all necessary means must be provided to this end. It must also be provided, and the law so contemplates, that the accused must not only be confronted...