dissenting: W. H. Williams, being called by the People for the purpose of acting as an interpreter, was sworn and interrogated first as to his ability to communicate with and understand Nove Morgan. He wás then told to ask Nove Morgan, who was present but not sworn, as to his acquaintance with Eliza Eason, and he reported that Morgan said he knew her but could not tell how long,—whether more than ten years or not. Williams was then told to request Morgan to ask her what any men did to her, if anything, on the evening of June 4, 1907. The defendants, by their counsel, objected to the question, but the court overruled the objection, remarking that this was preliminary, and defendants excepted. Thereupon Williams testified that Morgan said that Mrs. Eason said that Simpson and Weston choked her; that one caught her by the arms, one by the throat and one scratched her, and that Davis and Simpson had connection with her. Williams was then told to ask Morgan if he could find out from Mrs. Eason if she knew what the result would be if she told a lie, and he answered that Morgain said she said if she should swear to a lie she would go to hell, or down below. Counsel for the prosecution proceeded no further with the examination and Mrs. Eason was not sworn as a witness. Eor whatever purpose this examination was conducted, the effect of it was to get before the jury the unsworn statement of Eliza Eason as to the matter in controversy. It is no answer to say that it was not intended that this examination should be her testimony in the case. The witness detailed from the witness stand, against the objection of the defendants, her account of the very transaction that was the subject matter of the investigation. As evidence to be considered by the jury her statement so made was manifestly incompetent. It was mere hearsay. The jury heard it the same as any other evidence in the case, and were not instructed that it was not to be considered by them, even if it could be erased from their minds by an instruction.
It is said that the record shows only a general objection, and does not show any objection to the examination taking place in the presence of the jury. A general objection was all that was necessary, because under no circumstances could the testimony called for be competent. If it was sought to have Mrs. Eason’s unsworn statement placed before the jury, that could under no circumstances be competent, because it was hearsay. If the examination was for the purpose of determining whether Morgan could understand Mrs. Eason and interpret her statement to Williams, then it was unnecessary and improper that the details of her statement to Morgan should be repeated either to the court or jury. Whether Morgan could understand and interpret was the preliminary question, and what she communicated to him was not proper to be given to the jury before that preliminary question was disposed of.
Willis McElyea testified, over defendants’ objection, as to what he learned from Mrs. Eason after she had escaped from the defendants. He testified not only to the fact that she made complaint, but to the details of the assault upon her as he says they were given by Mrs. Eason, and this conversation did not occur on the night of the assault but at various times subsequently, prior to the trial. Even if the fact of her complaint had been competent, the details given by her of the assault were not admissible. (Stevens v. People, 158 Ill. 111.) The defendants objected to the conversation when it was first asked for, and their objection should have been sustained. Eater in the examination an additional objection was made because the witness was testifying to his understanding rather than what was said. The court made no ruling on this objection. But there was no waiver by the making of this additional objection of the general objection previously made to the whole conversation.
The court erred in both the particulars above mentioned in the admission of evidence. There is no ground for holding that the evidence did the defendants no harm. They were on trial for a serious crime, and, aside from the incompetent statements of Mrs. Eason, the evidence as to the particular offense charged against them was entirely circumstantial. They had the right to have this circumstantial evidence submitted to the jury and considered both with reference to their guilt .and the punishment to be inflicted upon them if they were found guilty, unaffected by the incompetent statements of Mrs. Eason, the effect of which would manifestly be to inflame the minds of the jury against the defendants. It was the province of the jury in this case to fix the length of-imprisonment to be imposed, and even though the defendants might have been found guilty without the incompetent evidence, it was of such a character as was calculated to seriously affect the punishment to be imposed, to the prejudice of the defendants.