
    MARTINEZ v. STATE.
    (No. 7887.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1923.)
    1. Criminal law- <&wkey;665(2) — Police officer not entitled to be excused from the rule.
    Police officers merely by reason of their office are not entitled to be excused from the rule.
    2. Criminal law <&wkey;665(4), 1144(12) — Abuse of discretion in excusing police officer from rule during part of trial held not shown.
    In excusing a police officer from the rule, an abuse of the trial court’s discretion will not be presumed, but must be shown, and where it appeared that, when any matter was being given in the testimony about which the police officer could have known, he was sent from the room, abuse of discretion was not established, as under those facts the purpose of the rule was served.
    3. Criminal law <&wkey;>656(5) — Court’s remark of confidence in interpreter acting' as witness to confession held reversible error.
    Where there was a conflict between accused, a Mexican unable to understand English, and the interpreter, a police officer, who was a witness to accused’s confession, court’s expression, when accused invoked the rule, of his confidence in the interpreter, and that the latter’s presence in court would be a protection both to the state and accused, held reversible error, in view of Code Cr. Proc. art. 787, forbidding court’s expression as to credibility of a witness.
    4. Criminal law <&wkey;642 — Other interpreter should have been appointed where interpreter’s testimony of confession conflicted with accused’s and other interpreters were available.
    Where, in a rape prosecution of accused, who was unable to understand English, the testimony of T., a police officer, who was a witness for the state, as to accused’s confession sharply conflicted with that of accused on the issue of a correct interpretation by T. of the confession, another interpreter should have been appointed, where others were available.
    5. Criminal law &wkey;>393 (3) — Physician who examined accused could testify accused had venereal disease.
    That a physician who examined a person under arrest for rape, and thereafter testified to his discovery of a venereal disease, held not violative of the rules against compelling one to give testimony against himself.
    6. Rape &wkey;>48(I) — Statement of prosecutrix to mother, not in accused’s presence, and made two days after alleged assault was not admissible.
    In a prosecution of accused for statutory rape on an eight year old girl, held, that, if the statement of the child to her mother was out of the presence and hearing of accused, and was made two days after the alleged assault, and during that time the mother and child had associated together, such testimony became hearsay, and was not admissible.
    7. Criminal law <&wkey;519 (9)— Confession not to be excluded merely because it was made in response to questions.
    An alleged confession by one unable to understand English, made in presence of interpreter and district attorney, is not inadmissible merely because it was made in response to questions, in the absence of a showing of threats or intimidations or other misleading methods on the part of the interpreter or the district attorney.
    8. Rape <&wkey;40(4) — That accused and mother of prosecutrix were in compromising position held not material.
    In a prosecution for statutory rape, testimony that accused and mother of prosecutrix were seen in a compromising position held not of evidential force in settling any issue fairly raised in the case.
    9. Rape <&wkey;>40(4) — That mother of prosecu-trix copulated) with some one other than her husband, or with accused', held inadmissible.
    In a prosecution for statutory rape on a child, evidence that the mother of prosecutrix had had sexual intercourse with some other than her husband or with accused held not admissible.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Santiago Martinez was convicted of statutory rape, and appeals.
    Reversed and remanded.
    Virgil Parker, S. S. Beene, Milton M. Heath, and Erank R. Graves, all of Port Worth, for appellant.
    R. Iv. Hanger, Dist. Atty., W. H. Tolbert and Julian B. Mastin, Asst. Dist. Attys., all of Port Worth, Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMOR®, J.

Appellant was convicted of statutory rape in the criminal district court of Tarrant county, and his punishment fixed at- 50 years in the penitentiary.

The parties to the transaction were all Mexicans, the prosecutrix being a little girl 8 years of age and appellant a young Mexican 20 years old. Prosecutrix testified that twice on the 17th of September, 1922, appellant penetrated her person to a limited degree with his privates, one occasion being in a ear and the other near her mother’s home. It was shown by the state’s testimony that from some cause the child soon thereafter developed a severe case of gonorrhea. Physicians who examined appellant’s person when arrested testified that he was afflicted with said disease. A confession of the appellant, taken while in jail through an interpreter, was admitted.

. The state relied in part on said written and signed confession of the appellant. It is made to appear that he is unable to speak or to read the English language. Soon after being placed in Jail, an assistant district attorney of Tarrant county sent, for appellant, brought him to his office, and there took the alleged confession, aided by a man named Tepfer who was shown on the trial to be at that time a police officer in the city of Fort Worth. The alleged confession was entirely in answer to questions propounded in English by said attorney, same being translated by Tepfer into Spanish or Mexican, and the answers of appellant being given in that language, and in turn translated by Tepfer into English, and then written down by said attorney. When completed said confession thus written in English was read in Mexican to appellant by Tepfer. Appellant then signed the document, Tepfer signing as a witness. Tepfer was present as a witness for the state upon this trial, apparently for the purpose of establishing the fact of the fairness and correctness of said confession. The truthfulness of the statements in said confession, as well as the fairness and correctness in the interpretations of his answers, were challenged by appellant while a witness in his own behalf.

The rule was invoked as to all the witnesses by the appellant. Tepfer was excused from the rule over objection. The bill evidencing this matter is qualified by the statement of the learned trial judge to the effect that Tepfer was an officer, and was only per-, mitted to remain in the room a part of the time, and, when any witness was giving testimony about which Tepfer could possibly know, he was sent out of the room. We know of no authority holding that police officers by reason of such office are entitled to be excused from the rule. The contrary seems true. Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 351. In such case, however, abuse of the lower court’s discretion will not be presumed, but must be shown, and, it appearing without dispute that when any matter was being given in testimony about which Tepfer could have known, he was sent from the room, such abuse of discretion does not appear. It is stated that the purpose of the rule is to prevent the testimony of one witness from being influenced by that of another. Jones v. State, 3 Tex. App. 150; McMillan v. State, 7 Tex. App. 142. If the court in fact sent the witness out when any matter relative to said confession was being introduced, this would seem to serve the purpose stated. Tepfer was not a witness to the transaction itself, but to appellant’s confession only.

Bill of exceptions No. 2 shows that when objection was made to Tepfer being excused from the rule the trial court said in the presence of the jury:

“I want the record to show that Mr. Tepfer is and has been for several years a peace officer; that the court has confidence in him as an interpreter, and the court requested said Tepfer to remain in the court room and to communicate to the court if at any time there is any misinterpretation made of the testimony by any interpreter, and it is for the purpose of safeguarding the rights of the defendant and. of the rights of the stal^e that the said witness is permitted by the court to remain in the courtroom; not for the purpose of assisting the prosecution, but for the purpose of assisting the court in seeing to it that the jury gets nothing but the truth.”

Exception was reserved to said statement on the ground substantially that Tepfer’s correctness and impartiality in interpreting the questions and answers constituting the alleged confession would be very material, and that the court’s statement of his confidence in Tepfer as an interpreter and that his presence as such would be beneficial both to the state and the defendant, was prejudicial. As a matter of fact, when appellant took the stand he emphatically denied both, the correctness and the fairness of Tepfer’s interpretation as involved in. the making of said confession, and swore that he did not make the statements in Mexican to Tepfer which appear in English in said confession. By the terms of article 787 of our Code of Criminal Procedure the trial judge is expressly forbidden to make any remark calculated to convey to the jury his opinion of the case. This is .held to forbid any expression of his opinion as to the credibility of any witness. Taylor v. State, 38 Tex. Cr. R. 241, 42 S. W. 384; Scott v. State, 72 Tex. Cr. R. 26, 160 S. W. 963; Caruth v. State, 77 Tex. Cr. R. 150, 177 S. W. 973; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558. Manifestly it would forbid any expression of the court’s opinion as to the reliability or correctness of an interpreter whose acts as such were made an issue before the jury. There being a direct conflict between appellant and said interpreter, it would seem clear that the court’s expression of his confidence in the latter and of the fact that his presence in court would be a protection both to the state and the defendant must necessarily be held by us erroneous. It would seem to put all of the authority of the court’s position and opinion behind' the testimony of the interpreter. The fact that the court told the jury that he was talking to the lawyers and not to them does not seem to us to at all remedy the error, nor could it suffice to withdraw from the jury’s recollection the fact that in their presence the court had expressed his confidence in the correctness of the interpreter.

The matters presented in bills of exception Nos. 3 and 4 will not be discussed, as upon another trial they will not likely occur. We merely observe that no facts are stated in said bills from which injury appears, nor does it seem the court denied to appellant the same opportunity to hear, both by him< self and interpreter of his own choice, what was being testified by prosecutrix—as was accorded tbe state’s attorney and tbe interpreter selected by tbe court.

The court selected one Mullins as interpreter when tbe case began. It is shown in bill of exceptions No. 5 tbat be could not perform tbis service, and tbe court announced tbat be was going to use tbe witness Tepfer. To this appellant objected, because Tepfer was a- material witness for tbe state. Tbis court has never held tbat one who was a witness in tbe case was thereby disqualified from acting as interpreter, and to lay down such a rule might in some cases work great hardship. Brown v. State (Tex. Cr. App.) 59 S. W. 1118, seems tbe first ease accessible in which we passed on tbe question direct, and we there held tbat one who was a witness being tbe only available interpreter, and it not being shown tbat be did not fairly interpret, no error appeared. In Ramos v. State (Tex. Cr. App.) 35 S. W. 378, tbe question of unfair interpretation was raised in the motion for new trial, but was held unsupported by any facts. In Sellers v. State, 61 Tex. Cr. R. 142, 134 S. W. 348, tbe matter was again raised in motion for new trial, and while this court intimates tbat one occupying the position of a prosecuting witness should not act as interpreter, yet in tbe absence of a showing of partiality, and tbat there were others available as interpreters who bad no interest in tbe case, we declined to reverse. Tbe record before us reflects no supporting proof of unfairness on tbe part of Tepfer, but, in view of tbe fact tbat it is shown tbat other interpreters were available, and further tbat there was a, sharp clash between tbe testimony of appellant and Tep-fer on the issue of tbe correct and fair interpretation by' Tepfer of appellant’s statements, which constituted the alleged confession, we suggest that on another trial under similar facts another interpreter be used. The state should avoid any imputation of unfairness, and especially is tbis true in dealing with those who are ignorant of our language and customs.

Appellant’s motion to strike out tbe testimony of prosecutrix because not correctly interpreted, as presented in bill of exceptions No. 6, was not supported by proof. It elsewhere appears tbat appellant bad present at the trial persons competent to understand and interpret. Doubtless if incorrect 'interpretation of questions and answers had been given on the trial, same would have been perceived by said private interpreters, and the claim of appellant set forth in this motion would have been supported by affidavits or oral testimony.

The remarks of the trial judge to counsel complained of in bill of exceptions No. 7 will doubtless not be made upon another trial, and will not be further discussed.

That a physician examines a person under arrest, and thereafter testifies to his discovery of a venereal disease, is not viola-tive of the rules against compelling one to give testimony against himself.

If on another trial it should appear that the statement of the child to her mother as set out in bill of exceptions No. 9 was out of the presence and hearing of appellant, and that same was made two days after the alleged assault, and that during the time the mother and child had associated together, the testimony would become mere hearsay, and should not be admitted.

In the absence of some showing of threats or intimidation or other misleading methods on the part of the interpreter or the assistant district attorney, we would not be inclined to hold the alleged confession inadmissible simply because same was made in response to questions. The testimony seems fairly to support the proposition that the matters contained in the confession, while given in answer to questions, were voluntarily stated by the appellant. The learned trial judge submitted to the jury the question of whether or not said confession was voluntarily made, and told them if it was not made freely and voluntarily, or if any incorrect interpretation thereof appeared, or if the appellant did not understand same, or signed something different from what he thought he was signing, that the confession should not be considered by the jury in determining their verdict. We do not deem the matters set out in appellant’s bills of exception Nos. 14 and 15 to present any error.

The testimony of witnesses that they had observed appellant and the mother of prosecutrix in compromising positions is not of evidential force in settling any issue fairly raised in this case. Nor do we believe it permissible to prove that the mother of prosecutrix had had intercourse with some other man than her husband, or with appellant.

For the errors mentioned, the judgment of the trial court- will be reversed, and the cause remanded. 
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