People v. Lem Deo

McFARLAND,J.

—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 995 of the Penal Code, upon the ground that a pérson not mentioned in section 925 of said code was permitted to be present during the session of the grand jury when the charge against appellant was under consideration. The person alluded to was one Wong Ock, and the facts touching the matter are these: When the grand jury was about to take up the charge against appellant, it was discovered that two of the main witnesses to be examined were Chinese, and could not speak or .understand the English language; whereupon the said Wong Ock, also a Chinese, but who understood and could speak both Chinese and English, was subpoenaed and sworn as an interpreter. During the examination of said two witnesses, which occupied about one

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half-hour, Wong Ock was present and acted as such interpreter; and as soon as said examination was concluded, he left, and was not again present, and was not present during any of the deliberations of the grand jury concerning said charge.

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 declaration 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