Appellant insists that he was denied his constitutional rights of being confronted by the witness against him. Bill of Exception No. 10, presenting this question, shows that appellant timely requested that the testimony of certain witnesses testifying against him in English be interpreted to him in Spanish, since he was unable to speak or understand the English language. The bill does not reflect whether counsel representing the appellant could or could not make this interpretation for him.
Our Constitution, Article 1, Sec. 10, among other things, guarantees to every person charged with crime the right to be confronted by the witnesses against him. Such, also, is the effect of Arts. 3 and 22 of the Code of Criminal Procedure.
The question thus presented is whether or not under the facts here presented, it is a violation of the constitution and statutory provisions mentioned to refuse to have the testimony of witnesses testifying in English interpreted to the accused, who is unable to read or understand that language.
In Kemper v. State, 63 Tex.Crim. R., 138 S.W. 1025, at p. 2038, we said:
"The constitutional provision that the accused shall be confronted with the witnesses against him means that the witnesses on the part of the State shall be personally present when the accused is on trial, or that they shall be examined in his presence and be subject to cross-examination by him."
To the same effect is the definition given in 14 Am. Jur., Criminal Law, p. 890, Sec. 177.
While it is true the Kemper case was subsequently overruled upon another point, the definition stated has not been criticised.
Here, confrontation is claimed to have been denied, not because the right to meet the witness face to face was denied but by reason of the fact that he was unable to understand what the witness was saying, and was thereby denied the right and privilege of cross-examination.
Although there appears no express authority so requiring, all proceedings in the trial of cases in this State are conducted in the English language, which follows, no doubt, from the adoption of the English common law.
Express statutory authority exists for the appointment of *Page 599 interpreters to interpret into English the testimony of witnesses who do not speak the English language. Art. 733, C. C. P. No statute exists, however, requiring the appointment of an interpreter for an accused who does not understand the English language. Livar v. State, 26 Tex. App. 115[26 Tex. Crim. 115],9 S.W. 552. If the appointment of an interpreter for the accused be required, then it is because of the constitutional and statutory guarantee of confrontation.
In Zunago v. State, 63 Tex.Crim. R., 138 S.W. 713, it appears there was an attempt to raise the question now before us. There, the accused, after the introduction of the testimony, moved to strike from the jury's consideration the testimony of certain State's witnesses because the accused, being unable to read or speak the English language, was unable to understand their testimony. In connection with the holding that request for an interpreter was not timely made, this court said, at p. 719: "Doubtless, if this had been requested, (that is, an interpreter) the court would and should have granted the request and furnished the defendant and his attorneys with an interpreter, if they or either of them deemed one necessary or proper, and would and should have given a sufficient time for the interpretation of the testimony of any or all of these witnesses and for a consultation between the appellant and his attorneys in everything pertaining to the testimony of these witnesses." (Parenthesis supplied.)
Appellant relies upon this statement of the court as supporting his contention.
The quoted statement is not deemed a precedent, because the question as to the right of the accused to have an interpreter was not before the court, since it had not been timely presented. It may be said, therefore, that the quoted statement is dictum and does not constitute a precedent. Nevertheless, the quoted statement suggests the view of this court upon the question and is entitled to be here considered in that light. Other than the quoted statement in the Zunago case, we find no case from this court touching the question.
The Sixth Amendment to the Federal Constitution, as well as the Constitutions of most of the States, provides for confrontation in language not materially different to that of our State Constitution.
The right of confrontation is a right granted by the Constitution *Page 600 to preserve the common law right and not to broaden it or disturb its exceptions. Salinger v. United States,272 U.S. 542, 71 L. Ed. 398, 47 S. Ct. 173.
It is generally agreed that the process of confrontation has two purposes. The main and essential one is to secure the opportunity of cross-examination. Snyder v. Massachusetts,291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330, 90 A. L. R. 575; Dowdell v. United States, 221 U.S. 325, 55 L. Ed. 753, 31 S. Ct. 590; Bell v. State, 2 Tex. App. 215[2 Tex. Crim. 215]; 14 Am. Jur., Crim Law, Sec. 176.
The granted right is not fixed or immovable; it may be waived. Exceptions exist to its application, as evidenced by the receipt in evidence of dying declarations and res gestae statements of deceased persons and the reproductions of testimony given by witnesses where prior opportunity of cross-examination has been accorded.
A leading case upon the question here presented is that of State v. Vasquez, 101 Utah 444, 121 P.2d 903, 140 A. L. R. 755, by the Supreme Court of Utah. In that case the accused requested an interpreter upon the ground that he was unable to understand the English-speaking witness. This request the trial court refused because it was not a right to which the accused was entitled. The majority opinion held that the action of the trial court was error and that the request was one addressed to the discretion of the court. Cases from other jurisdictions attesting that conclusion will be found annotated under the Vasquez case, 140 A. L. R., p. 766, et seq. From these cases it may be said that the generally accepted rule governing the question here presented is that the right of an accused who does not speak or understand the English language to have an interpreter appointed to interpret to him the testimony of the English-speaking witnesses rests largely in the discretion of the trial court. We are constrained to agree with and follow this rule.
The question here presented, then, turns upon the instant facts. To connect appellant with the conspiracy to commit the crime of burglary and to show that he was one of the co-conspirators thereto, in the commission of which crime the murder was committed by one of the co-conspirators, the State relied upon appellant's confession. As a predicate for the introduction of this confession, the State proved the facts and circumstances surrounding the making thereof, together with the statutory warning by a witness testifying in the English language. The testimony of the witness was of vital importance to the State, *Page 601 for, by it, the confession was shown to be admissible in evidence. The right to cross-examine this witness upon his testimony was equally important to the appellant. It was the testimony of this witness which appellant sought to have interpreted to him in a language that he understood. This request was refused without any effort, so far as the record reveals, on the part of the trial court, to ascertain if appellant's court-appointed attorney could make this interpretation for him, or if other means were available to appellant whereby he might understand the testimony of the witness.
As here presented, the action of the trial court in denying appellant's request is susceptible of no other construction save and except that he did not believe that appellant was lawfully entitled to have the interpreter appointed. Such, also, was the view entertained by the trial court in the Vasquez case, supra.
All persons are charged with notice that for crimes committed against the laws of this State, the trial will be conducted in the English language and that for non-English-speaking witnesses the law has made provision for the translation of their testimony by interpreters into the English language, with no express statutory provision requiring interpreters for those accused of crime who do not speak or understand the English language. Such fact tends to support the trial court's ruling. On the other hand, we know that in this State, especially along the Rio Grande border, our citizenship is comprised of Latin Americans who speak and understand only the Spanish language. These citizens, as also nationals of the Republic of Mexico (which was the status of appellant), when brought before the courts of this State charged with crimes against the laws of this State, are entitled to be tried according to the Constitution and laws of this State. This, of necessity, means they are entitled to be confronted by the witnesses under the same conditions as apply to all others. Equal justice so requires. The constitutional right of confrontation means something more than merely bringing the accused and the witness face to face; it embodies and carries with it the valuable right of cross-examination of the witness.
Unless appellant was in some manner, either through his counsel or an interpreter, afforded knowledge of the testimony of the witness, the right of cross-examination could not be exercised by him. Appellant timely requested the appointment of an interpreter. There is nothing to show that his counsel could make the interpretation to him. *Page 602
From what has been said, the conclusion is reached that in denying to appellant an interpreter, the trial court abused his discretion and appellant was thereby denied a right granted by the Constitution.
It is insisted that in the light of the State's testimony, together with appellant's confession, it cannot be reasonably said that appellant was injured by the refusal to furnish him the interpreter, as requested.
As appellant was denied, over his protest, a right granted by the Constitution, and was given the death penalty by the jury, this court will not indulge in speculation as to injury.
Every person accused of crime is entitled to be tried in accordance with law. Such a trial is not accorded when a constitutional right, timely requested, has been denied.
Believing we were in error in affirming the judgment of conviction, appellant's motion for rehearing is granted, the affirmance is set aside, and the judgment of the trial court is now reversed and the cause is remanded.
Opinion approved by the Court.
ON STATE'S MOTION FOR REHEARING.