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the evident want of comprehension, stand English would violate § 16, the manner, and the precise character article 1, of the Bill of Rights of the of the answers of the juror, and these Constitution, which declares that "No all necessarily have great weight citizen shall be deprived of life, with the court in determining the liberty, property, or privileges, outquestion as to the competency of the lawed, or exiled, or in any manner juror. It is evident upon reading the disfranchised, except by due course examination of the juror in question of the law of the land.” that he did not comprehend all the So, in holding that a challenge for questions put to him, and how far this cause should have been allowed as to want of comprehension existed it is jurors who did not speak or underimpossible for us to tell. We do not stand English, the court in McCampthink that the juror was so clearly bell v. State (1880) 9 Tex. App. 124, shown to be competent that we should 35 Am. Rep. 726, supra, said: “The reverse the conviction upon such a right of a defendant charged with ground."

felony to be tried by jurors who A person who does not understand understand the English language is the English language is not qualified not an open question in this state. In to serve as a juror. Fisher v. Phila- Lyles's Case (Tex.) supra, the quesdelphia (1870) 4 Brewst. (Pa.) 395, tion was maturely considered, and desupra. And in the instant case the termined affirmatively, and no subsepresence of such an incompetent juror quent legislation, organic or statuon the panel was held to necessitate tory, has qualified the ruling in that a continuance, where the rest of the case.

A trial would be equally panel had been discharged for the fair and impartial, within the meanterm.

ing of the Constitution, before a jury A verdict will be set aside where of deaf-mutes, who, by reason of their subsequently it is found that one of misfortune, could not hear a word of the jurors, a German, had not suffi- the testimony or argument of councient knowledge of the English lan- sel; and a trial before either could guage to render an intelligent verdic., be nothing less than a mockery." and could not intelligently distinguish And in Etheridge v. State (1880) between the offenses with which the 8 Tex. App. 133, supra, the court redefendant was charged.

Com.

marked that, although ignorance of Jones (1877) 12 Phila. (Pa.) 550, or inability to speak or understand supra. Apropos of the situation the English was not enumerated in the court remarked: “It is the defend- Code of Criminal Procedure ant's right to have the concurrent ground of challenge for cause to a minds of twelve jurors before he can juror, it had always been held a disbe convicted of an offense. It is not qualification by virtue of the constituenough that twelve men sat as jurors. tional guaranties of a fair and imparThey must all speak one mind; and tial trial and one conducted by due the concurrence of eleven minds with course of the law of the land. one mind which had no intelligent seems in the instant case that none knowledge of the offense with which of the jurors were liable to this obthe defendant was charged is not the jection. trial by jury contemplated by the In Essary v. State (1908) 53 Tex. Constitution and laws."

Crim. Rep. 596, 111 S. W. 927, it was In Lyles v. State (1874) 41 Tex. 172, held that the court did not err in 19 Am. Rep. 38, supra, it was held overruling a challenge to a Mexican that, although the Code did not in juror, who was objected to on the express terms make ignorance of the ground that he did not understand the English language one of the disabili- English language sufficiently well to ties of a juror, nevertheless, where comprehend the proceedings of the the proceedings of the court were in court, where he was examined in EngEnglish, a trial by a jury some of the lish and answered promptly in that members of which could not under language, read understandingly a pas

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sage from the Penal Code, and stated such want of knowledge of the Engthat he was conversant enough with lish language is a good ground for English to understand the testimony, excluding a juror has been deterthe arguments of counsel, and the mined by every court in which the charge of the court.

question has been raised, when the But an objection to a German juror law required that the proceedings of who had lived in America for only a the court should be in the English few years, who was practically illit- language, unless the statute of the erate, who could understand a little state, either in express terms or by English, "just enough to tell what clear implication, provides that such people were talking about," and who want of knowledge of the English lanstated that if taken on the jury he guage shall not be a ground of excould not understand all that was clusion.

Admitting the power said, and would have to guess at a of the court to exclude a juror bepart of it from what he heard, should cause of his want of knowledge of have been sustained. Sullenger v. the English language, it follows that State (1916) 79 Tex. Crim. Rep. 98, the power must be exercised in the 182 S. W. 1140, supra. On a rehear- discretion of the presiding judge, and ing affirming this holding the court it would require a clear case of the said: “The state contends, and we abuse of the power to call for the think properly, that a large discretion intervention of this court." is vested in the trial judge in passing

III. Power of trial court to reject on its upon the qualification of a juror.

own motion. While this is true, when an appellant's

In State v. Marshall (1845) 8 Ala. bill, properly allowed and approved

302, the court held that it was within by the trial judge, clearly shows that

the discretionary power of the trial a juror is disqualified, and the appel

court to reject of its own motion anylani made the proper objection and

one summoned as a juror, who, from preserved the question by proper bill,

any cause, was unfit to serve in that then the trial judge could not be held

capacity. In the instant case it to properly exercise his discretion in

seemed that the trial judge had of its holding the juror qualified. If the

own motion rejected two jurors, who, law is that a juror is disqualified, this

upon being questioned under oath, court could not sanction the holding of a trial court to the reverse, or in

stated that they did not understand

the English language sufficiently well the very face, of the law."

to serve as jurors. See also People In Shaw v. Fisk (1867) 21 Wis. 369,

v. Arceo (1867) 32 Cal. 40, V., infra. 94 Am. Dec. 547, supra, it was held

In Long v. State (1888) 86 Ala. 36, that the circuit court did not err in

5 So. 443, it was held that the statute granting a new trial upon the affi

prescribing the grounds for which a davits of two jurors that they could

person drawn and proposed as a juror not understand English well enough

might be challenged did not take to understand and act intelligently

away from the court its discretionary upon a jury.

power to excuse any person who to it In Sutton v. Fox (1882) 55 Wis. 531,

appeared to be unfit to serve on the 42 Am. Rep. 744, 13 N. W. 477, supra, jury, and the trial court was justified the court held that it was within the

in excusing a person drawn as a juror, power of the trial court to exclude who could not understand the English from the jury persons whose knowl- language sufficiently to qualify him edge of the English language was so to serve. limited and imperfect as to make it Under a statute providing that highly probable that they could not "nothing in this section shall be so intelligently comprehend the proceed- construed as to deprive the judges of ings in the course of the trial, al- this state of the discretion to decide though ignorance of English was not upon the competency of jurors in parmentioned as a ground of exclusion ticular cases when,

from in the statutes. The court said: “That ignorance of the English language and inability to understand the same to yield its assent to such a proceedwhen read or spoken,

the ing, or take part in such a trial. The juror may be incompetent to sit upon parties have the right to challenge for the trial of any particular cause,” it general disqualification, but their was held in State v. Rousseau (1876) neglect to avail themselves of that 28 La. Ann. 579, that the trial judge privilege does not prevent the court was justified in setting aside of his from inquiring as to the capacity of own motion, without any challenge, a juror to discharge intelligently the a juror whose native tongue was duties of his place." French, and who declared that he was

IV. Failure to understand particular not sufficiently familiar with English

terms. to understand the testimony of wit

The trial court was held not to be nesses, argument of counsel, and the

in error in State v. Williams (1882) charge of the court. The decision of

34 La. Ann. 959, in' holding as comthe trial court on the matter was conclusive.

petent a juror who was challenged

because he "did not know what the The trial judge may in his dis

meaning of the word 'perjury' was," cretion excuse a juror who states that

but who, when questioned, stated that he does not understand the English

he knew what "false swearing,” and language, even though no challenge

"swearing to a lie," meant—the proseor objection is taken to this juror by

cution being for perjury. either party. Atlas Min. Co. v. John

In State v. Dent (1889) 41 La. Ann. ston (1871) 23 Mich. 36, 1 Mor. Min.

1082, 7 So. 694, the court held that an Rep. 388. The court said: “As to

objection to a juror for incompetency the juror who was excused because he

based on the ground that he was not did not understand the language, we

sufficiently acquainted with the Engthink it would have been highly im

lish language, and did not understand proper to have allowed him to sit in

such terms as “bias," "prejudice," the cause, though unchallenged."

and "verdict,” must be received and Under statute requiring that

construed reasonably. The law does jurors shall be conversant with the

not require a juror to be a scholar, English language, the circuit judge

or that he should have an education. is authorized at any time before the

It only requires that he should comjury is sworn to excuse any person

prehend ordinary discourse in the from the panel. O'Neil v. Lake Su

English language. perior Iron Co. (1887) 67 Mich. 560,

It is not necessary to the com35 N. W. 162.

petency of a juror that he should be And in State V. Ring (1882) 29

a scholar, and understand the definiMinn. 78, 11 N. W. 233, it was held

tion of every word used in the course that the judge was authorized to ex

of a trial by witnesses, counsel, and clude a juror when it appeared that

the court. It is sufficient if he is conhe had not such knowledge of the versant with the English language so English language as to enable him to as to understand in substance the understand the evidence, the argu- argument of counsel and the testiments of counsel, and the instructions mony of witnesses. State v. Ford of the court, although no challenge (1890) 42 La. Ann. 255, 7 So. 696. for that cause had been made. The Inability of a German, who could court said: “It is the duty of the read English, to explain the meaning court to supervise, and within proper of the words "prejudice" and "bias," limits to control, the trial of causes

did not show such an ignorance of before it, to the end that justice may the English language as would disbe administered in reality as well as qualify him from fully discharging in form. The parties before the court his duties as juror. State v. Duesmight desire, from different motives, trow (1897) 137 Mo. 44, 38 S. W. 554, to accept an incompetent juror-one 39 S. W. 266. entirely unacquainted with our lan- The court did not err in refusing guage; but the court is not required to sustain a challenge to a naturalized German-American citizen who ap- to base its action, yet, in this case, peared to understand the questions there is some reasonable ground for put to him by the attorneys, but said the action of the court, and there is that there were some words in the nothing disclosed in the record to English language of which he might show that the discretion of the court not understand the meaning. Myers was not soundly exercised.” The trial v. State (1915) 77 Tex. Crim. Rep. court in the instant case excused of 239, 177 S. W. 1167. The court said: its own motion six jurors, on the “If we were to hold as disqualified ground that they were "ignorant of all citizens who do not understand the language in which the proceedthe meaning of all words in the Eng- ings of the court are carried on.lish language, the list of men quali- In Trinidad v. Simpson (1879) 5 fied to serve on the juries in this Colo. 65, it was said that, although state would be quite limited.”

under the statutes inability to speak

or understand English was not enuV. As affected by local conditions.

merated as a ground of challenge, the In People v. Arceo (1867) 32 Cal.

court would be empowered to reject 40, the court held that, although the

a juror ignorant of the language, if county in which the instant case was

in its discretion it saw fit; but in the tried was excepted from the pro

instant case the appellate court, after visions of an act requiring a juror to

taking into consideration the fact that be one "who has sufficient knowledge

the territory in which the trial took of the language in which the proceed

place was populated almost exclusiveings of the courts are had,” neverthe

ly with Spanish-speaking people, who less it was for the trial court to say,

were in all respects citizens of the under the circumstances existing at

United States, and it being within the the time, whether it was proper to

power of the trial court under its auexcuse a party ignorant of the lan

thority to make rules and regulations guage in which the proceedings of

governing its practice and procedure the court were carried on. The court

in reference to all matters not exsaid: "In all the counties of this

pressly provided for by law, held that state but six, a want of sufficient

the trial court was not in error in knowledge of the language in which

refusing to reject these jurors, as the proceedings are had is an absolute

under the authority aforesaid the difdisqualification. In those six coun

ficulty could be obviated by the apties, such want of knowledge of the

pointment by the court of an interlanguage is not a legal disqualifica

preter, under the sanction of an oath, tion which entitles a party to have a to interpret the testimony of witnesses juror excluded; but still, it is for the

and the argument of counsel. The court to say, under the circumstances

court said: “As to the discharge of existing at the time, whether it is

their duties in the jury room,-the proper that a party ignorant of the

duties of consultation, discussion, and language should be excused. If there

agreement,-it does not appear but are parties summoned as jurors,

, what the other jurors of the panel speaking two or more different lan

were Mexicans, and spoke the Spanguages, who cannot communicate with ish as well as the English language; each other, it is obviously improper if so, no interpreter was necessary that they should sit together upon after their retirement from the jury the same jury. There would be no box.

We desire to say, howmeans by which they could communi- ever, that the power of the court to cate with each other in the jury room. interpose an interpreter in the jury

While we do not say that a room is embarrassed by considerajudgment would not be reversed tions not attaching to the appointment where a court arbitrarily or wilfully of an interpreter to act in the presrejects a juror not disqualified under ence of the court, and, if it exist, its the provisions of the statute, without exercise should be limited to cases of any reasonable ground upon which strictest necessity."

In Re Allison (1889) 13 Colo. 525, the law which made ignorance of the 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 English language a disqualification Pac. 820, it was objected that the de- for a juror in this territory, or which fendant was deprived of due process gave the defendant any right to be of law, since some of the grand and tried by jurors of any particular napetit jurors who found the indict. tionality or language. The court said: ment and tried his case were Mex- “Apart from the impracticability of icans, who did not understand Eng- obtaining English-speaking juries, it lish. In answer to this objection the would have been manifestly unjust to court said: "This question is stare the great majority of the people of decisis here. Trinidad v. Simpson the territory had such a requirement (1879) 5 Colo. 65. The reasoning in as to language been made. Either that case is clear and satisfactory; they would have had to be tried in a nothing would be gained by repeating language which they did not underit. The employment of an interpreter stand, or else a double system would renders court proceedings more te- necessarily have been established, indious and expensive. This necessity cluding an English-speaking jury for is, therefore, to be deplored. But a English defendants, and a SpanishMexican elector, unable to speak or speaking jury for Spanish defendunderstand any other language than ants, and, if the theory had been carthe Spanish, may nevertheless possess ried to its logical conclusion, an Engall the qualifications for jury duty re- lish-speaking judge to address the quired by the Constitution and stat- English jury, and a Spanish-speaking ute; and, with the aid of an inter- one to instruct the Spanish jury." preter, he may perform the duties of So, also, in Reg. v. Earl (1894) 10 juror better than many English-speak- Manitoba L. R. 303, the court was of ing citizens. In certain counties of the opinion that ignorance of the Engthe state, where the great bulk of the lish language was not a ground of population originally were, and a very disqualification of a juror. Taylor, large proportion thereof still are, Ch. J., says: "A Pennsylvania case Mexicans, it would, for many years, of Fisher v. Philadelphia (1870) 4 have been practically impossible to Brewst. (Pa.) 395, was cited. These have administered justice under our reports are not in our library, but the system of jurisprudence, without their note of the case as given in Brightly's aid in this capacity." It seems that Dig. vol. 2, p. 1472, is: 'A person who since the decision in Trinidad v. Simp- does not understand the English lanson (Colo.) supra, was rendered, the guage is not qualified to serve as a legislature enacted a statute express- juror.' But how can that apply to this ly providing that neither the county province, where a number of the peocommissioners, the courts, nor the ple--not aliens, but British subjects judges should "discriminate against, -speak the French language, and are, reject, or challenge any person, other- some, only imperfectly acquainted wise qualified, on account of such per- with English, others wholly ignorant son speaking the Spanish or Mexican of it.” The court calls attention to language, and not being able to under- the fact that he use of the French stand the English language."

language permissible in the And in Territory v. Romine (1881) courts of the province, and that 2 N. M. 114, where all the jurors were among the grounds of challenge enuMexicans who did not understand merated in the Criminal Code, in English, the court held that the de- which it is stated that “no other fendant was not deprived of any of ground of challenge than those menhis rights, where the proceedings were tioned shall be allowed," ignorance translated to the jury by a sworn of English was not enumerated. interpreter, there being nothing in

R. P. D.

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