MOFFAT, Chief Justice.
On the first of September, 1940', Guadalupe Vasquez shot Juan Vargas. Both were Mexicans. The shooting from which Vargas died occurred at or near Fourth West and Second South streets, Salt Lake City, Utah.
About a month before the shooting Vargas and Vasquez had a fight in which Vargas beat and kicked Vasquez. Between the time of the fight and the fatal shooting, there was some evidence that Vargas had told others he was going to kill Vasquez. Upon this being reported to Vasquez, it is argued he said:
“All right, I will forget about it, if he will let me, hut I cannot take another beating.”
This quoted statement was excluded by the court. Physically it seems Vasquez was no match for Vargas, the latter being the larger, more vigorous and powerful of the two.
Witnesses who observed the tragedy, the position of the parties, and objects and conditions told the circumstances with varying details. Several witnesses testified that there was an ice pick by the side of Vargas where he fell when shot. One witness said that Vargas, after he was shot, said in Spanish to him,
“Louie please take that ice pick.”
Several witnesses said they did not see an ice pick there. The witnesses who said they saw an ice pick were generally in a better position to say. The statement by others that they did not see an ice pick amounts to little as against the
testimony of those who did. Evidence concerning the presence of the ice pick by the body of Vargas at the time of the tragedy, and some other events, movements, and suggestions are suggested as tending to show that Vasquez might have been acting in self-defense. At least this was the theory of his defense.
The appeal raises no question as to the sufficiency of the evidence to support the verdict of the jury. It is therefore unnecessary to go into the details of the evidence, or the conflicts therein.
The points raised by the appeal go to the question ultimately as to whether the defendant was accorded a fair trial.
Some items require notice before we proceed to an examination of the points argued as errors that occurred in the trial.
The defendant was bound over to the district court. The information recites that the defendant, having been committed to answer the charge, was accused of the crime of murder in the first degree. The record showed that the defendant, at the time of the preliminary hearing, requested he be given “such information as he is entitled to under the Constitution of the State of Utah” and also that “the defendant be given the information that would sufficiently enable him to prepare his defense.”
Defendant attempted to have the record of the committing magistrate corrected to show his demand for a bill of particulars in the proceedings before the committing' magistrate. It does not appear that the record was corrected or completed, although affidavits of the committing magistrate and counsel for the defendant make it appear without contradiction that the record was incomplete. The motion to quash the complaint and the information were not specifically designated a “bill of particulars” but the motion raised the question as to whether the complaint fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense or to give
him such information as he is entitled to under the Constitution of this state. Revised Statutes of Utah, 1983, 105-21-9, and 10, as amended by Chapter 118, Laws of Utah, 1935.
No point is made of these matters on this appeal. A defendant may waive his preliminary hearing and consent that he be bound over to the district court by the committing magistrate. We conclude that point was waived.
The sufficiency of the information was attacked in the district court by a motion to quash the information. The motion was denied. The court considered the motion as a demand for the bill of particulars. The court thereupon required the defendant to come forward and he was asked what his plea was to the information. The following is taken from the record:
Mr. Carlston:
“If the court please, at this time, in view of the fact that we have "been denied our constitutional rights to which we are entitled to (sic) •and in view of the fact that we have been denied what we believe our statutory rights, the defendant respectfully declines to plead.”
The Court:
“You may be teaching the Bar and the court in this state a lot, but I think your attitude way beyond the responsibility that counsel have to their clients. I think it is capricious. I think it is hypercritical. I think it is arbitrary. I think it verges upon sharp practice, and you ■can put that in the record; I want the Supreme Court to see it.”
A plea of not guilty on behalf of the defendant was entered by the court. The remarks of the court directed to •counsel appear unnecessarily severe.
Before the first witness had proceeded far in his testimony, counsel for defendant announced to the court that defendant, who' was a Mexican, could not hear all the witness said and was unable to understand some that he could hear. The defendant spoke Spanish, and what some wit
nesses described as broken English. His counsel spoke English and did not understand Spanish. Counsel for defendant requested that an interpreter be sworn to interpret the testimony so defendant could understand. This the court refused.
The refusal of the court to grant defendant’s request presents a question about which much might be said, yet there are few instances where a similar case has been reported. If the defendant cannot understand what the witness is relating, from some points of view it is analogous to his being out of hearing.
In the case of
State of Utah
v.
Mannion,
19 Utah 505, 57 P. 542, 544, 45 L. R. A. 638, 75 Am. St. Rep. 753, a defendant was required by the court to take a seat in a part of the court room away from the jury and witness, where he could not hear what the witness tesified to, nor could he see the witness while she testified. The court held that in a criminal prosecution the accused has the right to appear and defend in person and by counsel and to be confronted by the witness against him.
“He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established [,] by our constitution” and went on to say the court “denied the defendant a constitutional right, and prevented him from having a fair trial.”
“The constitutional right to be confronted by witnesses against him, and to defend in person, would be of little avail to the accused if he could be compelled to remain away during his trial, out of the sight and hearing of the witnesses against him.”
We have authority for the position that the defendant has the right to see the witness testifying against him and to hear what the witness says.
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MOFFAT, Chief Justice.
On the first of September, 1940', Guadalupe Vasquez shot Juan Vargas. Both were Mexicans. The shooting from which Vargas died occurred at or near Fourth West and Second South streets, Salt Lake City, Utah.
About a month before the shooting Vargas and Vasquez had a fight in which Vargas beat and kicked Vasquez. Between the time of the fight and the fatal shooting, there was some evidence that Vargas had told others he was going to kill Vasquez. Upon this being reported to Vasquez, it is argued he said:
“All right, I will forget about it, if he will let me, hut I cannot take another beating.”
This quoted statement was excluded by the court. Physically it seems Vasquez was no match for Vargas, the latter being the larger, more vigorous and powerful of the two.
Witnesses who observed the tragedy, the position of the parties, and objects and conditions told the circumstances with varying details. Several witnesses testified that there was an ice pick by the side of Vargas where he fell when shot. One witness said that Vargas, after he was shot, said in Spanish to him,
“Louie please take that ice pick.”
Several witnesses said they did not see an ice pick there. The witnesses who said they saw an ice pick were generally in a better position to say. The statement by others that they did not see an ice pick amounts to little as against the
testimony of those who did. Evidence concerning the presence of the ice pick by the body of Vargas at the time of the tragedy, and some other events, movements, and suggestions are suggested as tending to show that Vasquez might have been acting in self-defense. At least this was the theory of his defense.
The appeal raises no question as to the sufficiency of the evidence to support the verdict of the jury. It is therefore unnecessary to go into the details of the evidence, or the conflicts therein.
The points raised by the appeal go to the question ultimately as to whether the defendant was accorded a fair trial.
Some items require notice before we proceed to an examination of the points argued as errors that occurred in the trial.
The defendant was bound over to the district court. The information recites that the defendant, having been committed to answer the charge, was accused of the crime of murder in the first degree. The record showed that the defendant, at the time of the preliminary hearing, requested he be given “such information as he is entitled to under the Constitution of the State of Utah” and also that “the defendant be given the information that would sufficiently enable him to prepare his defense.”
Defendant attempted to have the record of the committing magistrate corrected to show his demand for a bill of particulars in the proceedings before the committing' magistrate. It does not appear that the record was corrected or completed, although affidavits of the committing magistrate and counsel for the defendant make it appear without contradiction that the record was incomplete. The motion to quash the complaint and the information were not specifically designated a “bill of particulars” but the motion raised the question as to whether the complaint fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense or to give
him such information as he is entitled to under the Constitution of this state. Revised Statutes of Utah, 1983, 105-21-9, and 10, as amended by Chapter 118, Laws of Utah, 1935.
No point is made of these matters on this appeal. A defendant may waive his preliminary hearing and consent that he be bound over to the district court by the committing magistrate. We conclude that point was waived.
The sufficiency of the information was attacked in the district court by a motion to quash the information. The motion was denied. The court considered the motion as a demand for the bill of particulars. The court thereupon required the defendant to come forward and he was asked what his plea was to the information. The following is taken from the record:
Mr. Carlston:
“If the court please, at this time, in view of the fact that we have "been denied our constitutional rights to which we are entitled to (sic) •and in view of the fact that we have been denied what we believe our statutory rights, the defendant respectfully declines to plead.”
The Court:
“You may be teaching the Bar and the court in this state a lot, but I think your attitude way beyond the responsibility that counsel have to their clients. I think it is capricious. I think it is hypercritical. I think it is arbitrary. I think it verges upon sharp practice, and you ■can put that in the record; I want the Supreme Court to see it.”
A plea of not guilty on behalf of the defendant was entered by the court. The remarks of the court directed to •counsel appear unnecessarily severe.
Before the first witness had proceeded far in his testimony, counsel for defendant announced to the court that defendant, who' was a Mexican, could not hear all the witness said and was unable to understand some that he could hear. The defendant spoke Spanish, and what some wit
nesses described as broken English. His counsel spoke English and did not understand Spanish. Counsel for defendant requested that an interpreter be sworn to interpret the testimony so defendant could understand. This the court refused.
The refusal of the court to grant defendant’s request presents a question about which much might be said, yet there are few instances where a similar case has been reported. If the defendant cannot understand what the witness is relating, from some points of view it is analogous to his being out of hearing.
In the case of
State of Utah
v.
Mannion,
19 Utah 505, 57 P. 542, 544, 45 L. R. A. 638, 75 Am. St. Rep. 753, a defendant was required by the court to take a seat in a part of the court room away from the jury and witness, where he could not hear what the witness tesified to, nor could he see the witness while she testified. The court held that in a criminal prosecution the accused has the right to appear and defend in person and by counsel and to be confronted by the witness against him.
“He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established [,] by our constitution” and went on to say the court “denied the defendant a constitutional right, and prevented him from having a fair trial.”
“The constitutional right to be confronted by witnesses against him, and to defend in person, would be of little avail to the accused if he could be compelled to remain away during his trial, out of the sight and hearing of the witnesses against him.”
We have authority for the position that the defendant has the right to see the witness testifying against him and to hear what the witness says. Are these rights more essential, or even as essential, than the right to understand what is going on in the proceeding? Suppose a defendant were placed in a transparent compartment where he could see all that took place, yet was deprived of hearing what, was said because all sound was cut off, could it be said that such a situation were less than a deprivation of the consti
tutional right of confrontation? The purpose of the confrontation must be to permit the defendant to be advised of the proceedings against him.
Degrees of understanding may present themselves between that of complete comprehension of the language to that of minor matters. The question, not properly heard or understood, may bring forth an answer that might turn the scales from innocence to guilt or from guilt to innocence. Then, too, the answer given might be made in words not entirely familiar or understood by the defendant. Mr. Justice Holmes once wrote:
“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”
Towne
v.
Eisner,
1918, 245 U. S. 418, at page 425, 38 S. Ct. 158, at page 159, 62 L. Ed. 372, L. R. A. 1918D, 254.
While English has comparatively few inflections, either a prefix or a suffix mistakenly applied or interpreted may change the meaning of a whole sentence. In this country the English language is the language of the courts. It may be argued that one who commits a crime in a given country should be required to provide himself with all the means that will enable him to understand the nature and cause of the accusation, and to present his defense. In answer thereto it might be said that the law has provided that where one is unable, because of impecuniosity to secure counsel, the court will appoint counsel for him. Although nominally prosecuting, the state is as interested in proving the innocence as the guilt of the party charged.
In order that a proceeding may be conducted in English and fulfill in part the requirements of a fair trial, Section 20-7-28' and Section 105-46-7, Revised Statutes of Utah, 1938, provide:
“Every written proceeding in a court of justice shall be in the English language, and judicial proceedings shall he conducted, preserved and published in no other.” And “The court or magistrate may cause to be issued a subpoena requiring any competent person to ap
pear before the court at' or during a trial or proceeding and act as interpreter. * * *”
If a witness cannot speak English, an interpreter must be provided.
“An interpreter is a witness subject to all of the rules relating to witnesses.”
(Code of Evidence proposed by the American Law Institute.) So where a witness cannot make himself understood wihout a ninterpreter, it requires both the witnes sand interpreter in order that counsel, the court, the jury and defendant will be brought as nearly a fair and complete understanding as may be reasonably possible. *
Evidence that the court or jury may not hear or understand is valueless in the settling of the issues. A witness fluently giving a narrative, understood by him but not by the court or jury, may, so far as reaching a comprehensive result is concerned, be telling of the gold, gum, salt, and ivory of Timbucktu. May it be said to be a fair trial if a defendant is in the same position?
In the instant case, the defendant demanded an interpreter upon the ground he was not able to understand all the English-speaking witness said. The trial court said the defendant could not have an interpreter upon the ground it was “a right the defendant isn’t entitled to in an English speaking court.”
Section 12, Article I, Constitution of the State of Utah, provides, in part:
“In criminal prosecutions the accused shall have the right to appear •and defend in person and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to be confronted by the witnesses against him.”
As has heretofore been stated, the right of confrontation, in a constitutional or bill of rights sense, is more than the
dictionary definition, viz., to meet face to face. A trial is more than a meeting of a defendant by witnesses face to face and silently. The confrontation is the meeting of the proof or evidence as understood by the interested parties according to their understanding.
It is important that the trial court in the exercise of its discretion as to the necessity of an interpreter, either for the defendant or for a witness, be fully advised. It is far better to err by traveling a longer road or taking more time than to err by depriving one of a fair trial for want of understanding or comprehension of what is taking place. This is especially so where a human life is at stake. The purpose of a criminal proceeding is not to convict but to determine innocence or guilt. Such having once been determined by a fair trial, what follows is an administrative matter.
We’ concur in the statement in the case of
Escobar
v.
State,
30 Ariz. 159, 245 P. 356, and cases therein cited, to the effect that
“it is the fairer and better way for the court, either of it's own motion in a capital case or upon request in one of a lesser degree, to provide such an interpreter, and, if in any such case, the record indicates a failure to provide an interpreter has in any manner hampered the'defendant in presenting his case to the jury, we shall hold a fair and impartial trial has been denied him.”
What has been said covers another problem in the case-The defendant offered himself as a witness in his own behalf. The following occurred:
“I request that he be sworn in his native tongue, the Spanish language, because he has difficulty understanding English.”
“We will swear him in his native tongue, but we will try to get along without an interpreter.”
After defendant was sworn, his counsel then requested that the defendant be permitted to speak in his native tongue through an interpreter. This was objected to on behalf of the state. The court then refused or failed to rule upon the question that had been asked and objected to, to wit: “Do you have difficulty in understanding all that is said to you in English” without the defendant giving the court an opportunity to judge whether an interpreter was necessary, this was error.
The defendant excepted to an instruction given by the court, part of the instruction reads:
“You are further instructed that if you find the defendant guilty of murder in the first degree, you should then consider the question of making such recommendation [that is life imprisonment] and in considering this question you are to give it your careful and conscientious consideration. You should take into consideration all of the facts and circumstances shown by the evidence in the case surrounding the fatal shooting which would appeal to your judgment as reasonable men and from all of these facts and circumstances determine whether or not you will make such recommendation. If you make such recommendation you will include it in your verdict.”
This instruction was erroneous. In this jurisdiction the question as to whether the jury shall recommend the defendant to* the mercy of the court is a matter entirely within the jury’s discretion.
State
v.
Markham,
100 Utah 226, 112 P. 2d 496. The Markham case and the cases therein cited need not be amplified. It is sufficient to say that the instruction could have no other purpose than to guide the jury as to the verdict they should render.
Other assignments are made, among them, that the defendant’s theory of the case should be included in the court’s instructions to the jury. It would unnecessarily lengthen this discussion to quote the instructions requested and those given and compare them. The instructions are subject to the criticism that they are largely correct abstract statements of the law with insufficient application of the proven facts and theories of the case to the law as stated.
We are of the opinion that the cumulative effect of the errors amounted to the denial of a fair trial. The judgment is reversed and the cause is remanded for a new trial.
LARSON, J., concurs.