The facts sufficiently appear in the opinion. Appellant was convicted of the crime of murder in the first degree in killing Frank Messa. The only exception urged in this court is upon a motion to strike out the testimony of Eugene Cozzens, a witness introduced by the prosecution to prove a confession made by the defendant, upon the ground that a portion of it was hearsay. The defendant is an Indian. The confession was spoken in the jargon formed by the mixture of the language of his tribe with English words. Cozzens did not understand that portion of it which was spoken in the native language of the Indian, and an interpreter translated it. The court allowed the motion to strike out all of Cozzens' testimony that he understood by the aid of the interpreter, but all the testimony that Cozzens understood without the aid of an interpreter was allowed to stand. *Page 348
"Some of the reasons given why extrajudicial confessions should be received with great caution are that there is danger of mistake from the misapprehension of the witness, the misuse of words, the failure of the party to express his own meaning, the infirmity of memory." (People v. Gelabert, 39 Cal. 663.)
"In the proof of confessions, as in the case of admissions in civil cases, the whole of what the prisoner said on the subject, at the time of making the confession, should be taken together. This rule is the dictate of reason, as well as of humanity. The prisoner is supposed to have stated a proposition respecting his own connection with the crime, but it is not reasonable to assume that the entire proposition, with all its limitations, was contained in one sentence, or in any particular number of sentences, excluding all other parts of the conversation. As in other cases, the meaning and intent of the parties are collected from the whole writing taken together, and all the instruments, executed at one time by the parties, and relating to the same matter, are equally resorted to for that purpose; so here, if one part of the conversation is relied on, as a confession of the crime, the prisoner has a right to lay before the court the whole of what was said in that conversation; not being confined to so much only as is explanatory of the part already proved against him, but being permitted to give evidence of all that was said upon that occasion relative to the subject matter in issue." (1 Greenleaf on Ev., 218.)
The court should have granted appellant's motion and have stricken out all of the testimony of the witness concerning the confession. But the failure to make the proper order will not result in reversing the judgment as the same confession was conclusively established by several other witnesses who were familiar with the Indian language and whose testimony was not attempted to be contradicted, therefore the error was harmless. (State v. Murphy,9 Nev. 394; Perrin v. State, 50 N. W. 516;Torris v. People, 36 Pac. 153; Mayor ofN.Y. v. National Broadway Bank, 27 N. E. 555;Brown v. Kloch, 5 N. Y. 245; Crim. Pr. Act, sec. 487.) *Page 349