46 48 47 duty it may be to interrogate witnesses. A court may punish as a contempt the refusal of a witness to testify before a commissioner appointed by it to take depositions, or before the grand jury over which it exercises control, and it may do so often as the witness refuses.49 When the witness has the statutory right to answer pertinent questions only, he cannot be committed for contempt if he refuses to answer those which are not pertinent.50 If the court has not obtained jurisdiction, a witness who refuses to testify is not in contempt.": 51 § 227. Interpreting the language of the witness.-The employment of an interpreter when the witness is unable to speak or to understand the English language,52 and the manner in which the examination through the interpreter shall be conducted,53 are discretionary with the court when not expressly regulated by statute. But, where a party in a civil trial was deprived of the testimony of a material witness (and a fortiori this rule would seem applicable where one is accused of crime), by the refusal of the court to accept an interpreter who was offered, a new trial was granted. 54 46 People v. Rice, 57 Hun (N. Y.) 62, 10 N. Y. S. 270, 32 N. Y. St. 7; White v. Morgan & Co., 119 Ind. 338, 21 N. E. 968; Llewellyn's Case, 13 Pa. Co. Ct. 126; Woodworth, Ex parte, 29 W. L. Bul. 315, and cases in Underhill on Ev., p. 468. "Robb's Petition, 11 Pa. Co. Ct. 442. "A justice of the peace, though he cannot commit a witness for contempt, may bind a party refusing to testify to answer an indictment for obstructing justice." Lapp, 26 Pa. St. 99. Albright V. "United States v. Caton, I Cranch C. C. 150; Harris, Ex parte, 4 Utah 5. 5 Pac. 129; People v. Fancher, 2 Hun 226; People v. Kelly, 24 N. Y. 74: Stice, Ex parte, 70 Cal. 51, II Pac. 459. Stice, Ex parte, 70 Cal. 51, II Pac. 459. 53 52 Horn v. State, 98 Ala. 23, 13 So. 329; State v. Severson, 78 Iowa 653, 43 N. W. 533; Livar v. State, 26 Tex. App. 115, 9 S. W. 552; Thomason v. Territory, 4 N. Mex. 150, 13 Pac. 223. Skaggs v. State, 108 Ind. 53, 8 N. E. 695. See People v. Salas, 2 Cal. App. 537; 84 Pac. 295, where under Code § 1884 the court had the right to appoint a resident of the county as an interpreter. 56 A witness may act as interpreter.55 But every non-official interpreter should be sworn to interpret truly.5 The accuracy of the interpretation is a question for the jury," and either side may impeach its accuracy by cross-examining the interpreter, or by producing another claimed to be more accurate.58 § 228. Improper reception of evidence by the jurors.-For the jury in a criminal trial to seek or to receive evidence out of court is in the highest degree improper. Such action prejudicing the accused will, if the verdict might have been influenced thereby, be ground for a new trial. Jurors will not be permitted to experiment,59 or take a private and unauthorized view, or to communicate with other persons. Ill. 283, 23 N. E. 436. Cf. People v. 37. 55 One of several witnesses summoned before the grand jury may act as an interpreter for the others. People v. Ramirez, 56 Cal. 533, 38 Am. 73. A juror may, with the defendant's consent, act as interpreter. People v. Thiede, 11 Utah 241, 39 Pac. 837; Thiede v. Utah Territory, 159 U. S. 510, 40 L. ed. 237, 16 Sup. Ct. 62; Chicago &c. Co. v. Shenk, 131 Ill. 283, 23 N. E. 436. 8 So. 304; Nioum v. Commonwealth, 128 Ky. 685, 108 S. W. 945, 33 Ky. L 62. Though the appointment of an interpreter is usually discretionary in the absence of statute one is almost always appointed if the necessity is at all apparent. Usually it is the accused who needs the interpreter and if he has any difficulty in understanding English an interpreter ought to be appointed in justice to him. The fact that he understands or speaks the English language to a limited extent ought not to deprive him of the services of an interpreter if necessary to enable him to make his defense. 50 Yates v. People, 38 Ill. 527; Forehand v. State, 51 Ark. 553, 11 S. W. 766; People v. Conkling, 111 Cal. 616. 44 Pac. 314; State v. Sanders, 68 Mo. 202, 30 Am. 782. Where the question was, could the prisoner's voice have been heard on a certain occasion, the experiment of stationing a man outside the jury-room, who was to listen and report if he could hear the voices of the jurors through a closed door, was held ground for a new trial. Jim v. State, 4 Humph. (Tenn.) 289. and particularly with witnesses." But communications by jurors with outsiders may be disregarded if it clearly appears that no injustice has resulted to the accused."1 Neither party to a criminal trial has the right to submit documentary or other evidence to the jury except during the trial and in the presence of the court. The reception of evidence out of court may cause a conviction to be reversed. And with much better reason, writings which are no part of the evidence, such as newspapers, maps or diagrams, scientific books," or legal publications, are not permitted to be perused by the jury. The jurors may, when out of court, consult memoranda or notes of the judge's charge," and all papers which are in evidence, including the indictment."9 60 62 Epps v. State, 19 Ga. 102; State v. Fruge, 28 La. Ann. 657; March v. State, 44 Tex. 64; Collier v. State, 20 Ark. 36. If a juror has knowledge of the facts or of the character of a witness, he should be called as a witness. Where the verdict is based upon or influenced by statements of facts known to the juror made in the juryroom, which would be relevant evidence if he were a witness, a new trial will be granted. Taylor v. State, 52 Miss. 84; Anschicks v. State, 6 Tex. App. 524; McKissick v. State, 26 Tex. App. 673, 9 S. W. 269; Lucas v. State, 27 Tex. App. 322, 11 S. W. 443. 64 State v. Gillick, 10 Iowa 98. Phillips v. State (Tex., 1896), 34 S. W. 539; State v. Wilson, 40 La. Ann. 751, 5 So. 52, I L. R. A. 795; State v. Smith, 6 R. I. 33; Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009; Harris v. State, 24 Neb. 803, 40 N. W. 317; State v. Hopper, 71 Mo. 425; 27-UNDERHILL CRIM. Ev. 63 66 68 Johnson v. State, 27 Fla. 245, 9 So. 208; State v. Gillick, 10 Iowa 98. 6 See Underhill on Ev., p. 490, citing cases. The mere presence of law books, etc., in the jury-room is not enough, if the jury did not read them. State v. Harris, 34 La. Ann. 118; State v. Tanner, 38 La. Ann. 307. This must be shown. It will not be presumed. Jones v. State, 89 Ind. 82. Cf. Mulreed v. State, 107 Ind. 62, 7 N. E. 884. 67 State v. Thompson, 83 Mo. 257, 261; Hurley v. State, 29 Ark. 17. 68 People v. Formosa, 61 Hun 272, 16 N. Y. S. 753; Masterson v. State, 144 Ind. 240, 43 N. E. 138; United States v. Wilson, 69 Fed. 584; State v. Lowry, 42 W. Va. 205, 24 S. E. 561; State v. Raymond, 53 N. J. L. 260, 21 Atl. 328; Baker v. Commonwealth (Ky.), 17 S. W. 625, 13 Ky. L. 571; State v. Tompkins, 71 Mo. 613; People v. Cochran, 61 Cal. 548; Cargill v. Commonwealth, 93 Ky. 578, 20 S. W. 782, 14 Ky. L. 517. Depositions, however, may be excluded. State v. Carr, 20 W. Va. 679; State v. Lowry, 42 W. Va. 205, 24 S. E. 561; Baker v. Commonwealth (Ky.), 17 S. W. 625. Stout. v. State, 90 Ind. 1. The impropriety and unfairness of permitting jurors to take in the jury-room articles of personal property which have been used to explain the evidence, and from which they may draw, in the absence of judge, counsel and accused, erroneous and unjust inferences will be admitted. Hence, by the majority of the cases it is held that for the jury to take into the jury-room a weapon. alleged to have been employed by the accused, is reversible error.7 There are cases, however, which hold the contrary, and if the accused consent, it seems that articles, as clothing, not in evidence. may be taken by the jury to aid them in their deliberations.1 § 229. View by the jurors-Discretionary power of the court.The court is sometimes permitted by statute to direct the jury trying a criminal to be taken in a body, in charge of proper officers, to the place where the crime was committed, or where a material fact or transaction occurred, or they may be taken out of court to view some bulky article of personal property, as a wagon, which cannot be brought into the court-room. The exercise of the statutory power is usually altogether discretionary, and a refusal to grant a view is not error unless it clearly appear that it was necessary and practicable, and that the denial of the request substantially injured the accused. 72 A view cannot, however, be ordered by the court in the absence of statute without the consent of all parties.73 Sometimes 70 Forehand v. State, 51 Ark. 553, II S. W. 766; Yates v. People, 38 Ill. 527; Forehand v. State, 51 Ark. 553, 11 S. W. 766; People v. Thornton, 74 Cal. 482, 16 Pac. 244; English v. State, 31 Fla. 340, 12 So. 689; McCoy v. State, 78 Ga. 490, 3 S. E. 768; compare contra, State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223; Powell v. State, 61 Miss. 319; Jack v. Washington Territory, 2 Wash. Ter. 101, 3 Pac. 832. 311; People v. Bonney, 19 Cal. 426; Benton v. State, 30 Ark. 328; Chute v. State, 19 Minn. 271. See also, Underhill on Ev., § 344; State v. Hunter, 18 Wash. 670, 52 Pac. 247. 73 State v. Bertin, 24 La. Ann. 46; Bostock v. State, 61 Ga. 635; Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491. In Smith v State, 42 Tex. 444, it was held that a view cannot, in the absence of a statute, be ordered on the request of "People v. Mahoney, 77 Cal. 529, the state, even if the accused con the statutory power may be exercised sua sponte. Usually the view can be directed only on request or with the consent of all parties. Whether in any case a request or consent is necessary depends upon the express terms of the statutes, which should be consulted.74 § 230. Purpose of the view is to afford evidence.-The authorities are divided upon the question whether the purpose of taking the view is to furnish new evidence or to enable the jurors to comprehend more clearly in the light of fuller knowledge, and by the aid of visible objects, the evidence received in court. The latter proposition is well supported, and seems more consistent with. the conservative theories on which the rules of evidence and procedure in jury trials are based." But the contrary opinion that the purpose of the view is to supply evidence is also held and supported by the majority of the cases." Indeed, where the evidence regarding the locus in quo is at all contradictory, it is a mental impossibility for the jury to view it without receiving some knowledge through their eyes which, so far as it modifies the facts proved, or reconciles conflicting evidence, is itself evidence.78 § 231. The right of the accused to be present during the taking of the view. From this diversity of opinion it follows that the right of the accused to be present at the view is not settled. If the purpose of the view is to obtain evidence the view is a part *Conrad v. State, 144 Ind. 290, 43 them, and not to make them silent witN. E. 221. Shular v. State, 105 Ind. 289, 4 N. E. 870, 55 Am. 211; Sasse v. State, 68 Wis. 530, 32 N. W. 849; State v. Adams, 20 Kan. 311; O'Berry v. State, 47 Fla. 75, 36 So. 440. "In Close v. Samm, 27 Iowa 503, it is said: The purpose is to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same and thereby the more intelligently to apply the testimony to the issues on trial before nesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party. See cases cited in note I, p. 282, and civil cases Underhill on Ev., p. 491. "State v. Bertin, 24 La. Ann. 46; Smith v. State, 42 Tex. 444; Benton v. State, 30 Ark. 328. See cases cited in note. |