McCampbell v. State.

and the greatest aptitude for the duties of a juror. While this is the case, the inability of a juror ignorant of the language in which the proceedings of the court are had to discharge the duties of a juror unaided is patent.

"It is his duty to listen to the evidence, the arguments of counsel and the instructions of the court. Ignorance of the language as a matter of fact is as conspicuously a disqualifying circumstance as though he was deaf, unless the court may aid him in the discharge of his duties through the instrumentality of an interpreter; hence the question comes to this: May the court in such a case interpose an interpreter? If it has the power, the disqualification is removable; if not, it is complete and absolute.

"It is true there is no express authority of statute so to do, but there is a general power conferred by section 402 of the Code upon District Courts to make rules and regulations governing their practice and procedure in reference to all matters not expressly provided for by law. Independently of statute, courts of original jurisdiction have inherent power to make and enforce rules for the transaction of their business, subject only to the condition that they do not contravene the laws of the land. Gannon v. Fritz, 79 Penn. St. 303. "It must be borne in mind that the territory embraced in quite a number of the counties in the southern part of the State, and among them the county in which this litigation originated, formerly belonged to the Republic of Mexico; that it was acquired by treaty by the United States, and that the inhabitants thereof were largely, if not exclusively, a Spanish-speaking people. Of this fact we take judicial notice. These people are in a respects citizens, and the association of alienage and its disabilities with ignorance of our language is to be dismissed. Under like circumstances it was provided by statute, in the State of California, that a juror should have sufficient knowledge of the language in which the proceedings of the court were had; but certain counties, where a large portion of the population were ignorant of the English language, were excepted by the statute from the operation of this rule. It is a noticeable fact that both under our territorial and State governments, legislation touching the administration of the law has proceeded without any express reference to or recognition of the fact, that in the counties mentioned its administration would chiefly concern, as for its agencies it would be largely dependent upon, a Mexican citizenship. In the early history of the Territory it would have been perhaps impossible in these counties to obtain an English-speaking jury. Even now the exclusive rule that is contended for, if it did not defeat the administration of the law in these counties, would devolve the burdens of jury duty upon a very limited number.

"We cannot conceive that legislators have been blind to these facts or negligent of their demands. In the absence of express legislation we presume them to have regarded the difficulty as amply provided for, either in the provisions of section 402, cited supra, or in the inherent powers of the courts of original jurisdiction which they had established for the administration of the law. For these reasons we think it was fully within the power of the court to appoint an interpreter, under the sanction of an oath, to interpret the testimony of witnesses and the arguments of counsel. This would affect the discharge of their duties as jurors while in the jury box. Further than this we do not decide.

"It does not appear that an interpreter was appointed; but it is to be presumed that the court did whatever was necessary in this behalf.

"As to the discharge of their duties in the jury room- the duties of consultation, decision and agreement - it does not appear but what the other jurors of the panel were Mexicans, and spoke the Spanish as well as the English language; if so, no interpreter was necessary after their retirement from the jury box.

"We are told that we must presume that they were English-speaking only. Respecting the jurors in a county where the English-speaking class is so limited, and the Spanishspeaking class is so largely in excess, such a presumption would be without foundation in fact, and inadmissible. Without this presumption it does not affirmatively appear that the jurors named were disqualified for the duties of the jury room. We desire to say, however, that the power of the court to interpose an interpreter in the jury room is embarrassed by considerations not attaching to the appointment of an interpreter to act in the presence of the court, and if it exist its exercise should be limited to cases of strictest necessity.

"Mucn stress is laid upon the proposition that all judicial proceedings must be in the English language, and the case of Dunton v. Montoyo, 1 Col. 99, is cited as authority. In

McCampbell v. State.

that case the narr. was in the Spanish language, and the doctrine of the case must be limited to the declaration that all pleadings must be in English. The fallacy of the argument on this proposition consists in treating a general rule as though it were an exclusive rule. The declaration of the Code (§ 405) is that every written proceeding in a court of justice in this State, or before a judicial officer, shall be in the English language.' This is substantially the statute of 4 Geo. 2, 626, which enacts that both the pleadings and the record should thenceforward be framed in English.' Stephen's Pleadings, appendix 24. Prior to that time the record and pleadings (after the introduction of written pleadings) had been framed in Latin, and the statute had for its object the abolition of that practice.

"By statute 36 Edward III, it was enacted that for the future all pleas should be pleaded, shown, defended, answered, debated and judged in the English tongue, but be entered and enrolled in Latin.' 3 Black. Com. 318. The arms of Edward had prevailed over those of France, and the object of the statute was to banish from the English courts of justice the use of the Norman or law-French introduced after the Conquest. This appears to be the only statute on the subject prior to the fourth year of James I.

"How far and with what modifications it may be said to prevail as part of our common law, need not be discussed. Undoubtedly laws are to be administered in the language of the people adopting them. The people of this State, as of the United States, are an English-speaking people, and in the silence of the statute, all judicial proceedings would be, as of course, in that language. It does not follow, however, that they would be exclusively so. This proposition must be taken subject to the practical necessities that daily arise in the administration of the law in courts of justice.

"Contracts in a foreign tongue are to be dealt with, and must be translated. NonEnglish-speaking witnesses are put upon the stand and must bear witness' through an interpreter. Non-English-speaking prisoners are put upon their trial, and the indictment and other proceedings of the trial are made known and manifest to them by the same instrumentality. The proposition, therefore, that all judicial proceedings must be in the English language, must be taken sub modo.

"In this view, the difficulty made respecting the instructions of the court also disappears. While under the Code they must be in writing, and under section 405, in English, we do not conceive that their translation into Spanish for the use and instruction of a juror understanding that language alone, would be inhibited by the spirit of the section. The object of the provision is to secure a record in English, and this would in no wise be defeated.

"The hypothetical case put by counsel of a jury composed of persons of several different nationalities, is met by the suggestion that extremes prove nothing. Such complications are not likely to arise where ample judicial discretion exists.

"We are not unmindful that there are many serious objections to the interposition of interpreters in judicial proceedings, and while we hold it within the power of the court to appoint an interpreter under the circumstances of this case, it was also within its discretion to exclude the jurors named for the cause assigned. People v. Arceo, 32 Cal. 40; Atlas M. Co. v. Johnson, 23 Mich. 37; State v. Marshall, 8 Ala. (N. S.) 302.

"Such persons are not disqualified, but whenever it is practicable to secure a full panel of English-speaking jurors, a wise discretion would excuse from jury duty persons ignorant of that language.

"The cases of Fisher v. Philadelphia, 4 Brewst. 395, and Lyles v. State, 41 Tex. 172; 8. c., 19 Am. Rep. 38, are cited against the conclusion arrived at in this opinion. The first authority we have been unable to obtain. With the reasoning of the last we are not sat. isfied. If our conclusion as to the power of the court to appoint an interpreter be correct, the foundation upon which the conclusions in that case appear to rest, disappears." We think there can be no doubt of the unsoundness of this last case.

Hudson v. State.

HUDSON V. STATE.

(9 Tex. Ct. App. 151.)

Criminal law — larceny — several articles at one time and place — bar.

Larceny of several articles, belonging to several owners, by one person, at the same time and place, constitutes but one offense, and conviction or acquittal of larceny of any one of them is a bar to a prosecution for larceny of any of the rest.*

VICTION of theft. The opinion states the case.

CONVICTION

W. B. Dunham, for State.

WINKLER, J. The indictment upon which the appellant was convicted charges him with the theft of one gold watch, the property of Mrs. Juliet M. Hurndall, alleged to have been committed in Gillespie county, on August 13, 1879. On the trial, the appellant, besides entering the plea of not guilty, pleaded a former conviction for the same offense, and on another indictment, and before the same tribunal wherein it was then sought to try him again. The indictment pleaded in bar of this prosecution charges him with the theft of four National-bank notes, of the currency of the United States, of the value of $10 each; one National-bank note, currency of the United States, of the value of $5, and other articles of personal property and apparel described in the indictment, and amounting in the aggregate to the value of $97, averred to be the property of Herbert Hurndall. This also is alleged to have been committed on August 13, 1879.

On the trial, Mrs. Juliet M. Hurndall, the alleged owner of the gold watch mentioned in the indictment, testified that she knew the defendant in August, 1879; that he lived in their house three or four months and left there in the night of the 13th of August, 1879; that between nine and ten o'clock on the 14th, following, she says, 66 we ascertained that my gold watch and the articles named in indictment No. 344 were missing. We got all the articles back at the same time, from John Walter, sheriff of Gillespie County.

*

* The watch was taken from my trunk in my chamber."

*To same effect, State v. Hennesey (23 Ohio St. 339), 13 Am. Rep. 253.

On cross-examination, this witness testified that she and her two sons, Herbert Hurndall and Henry Hurndall; her husband, Mr. Hurndall; and the defendant, lived in the same house; that the articles mentioned in the indictment (No. 344) belonged to her son Herbert Hurndall, and that these articles and her watch were all missing on the morning of the fourteenth day of August, 1879, and all taken from the same house, but from different rooms; and that the house was under the control of her husband.

The indictment No. 344 was introduced in evidence, and also the verdict and judgment, by which the defendant was convicted and his punishment assessed at confinement in the State penitentiary for a term of ten years. Herbert IIurndall testified that the articles mentioned in indictment No. 344 belonged to him, and were taken from his room in the house occupied by himself, his brother, and his step-father and wife; that the four ten-dollar bills, currency, were taken from his trunk, in his room, and that his room is separate from Mrs. Hurndall's, but all in the same house; and that the house was under the control of the witness' step father, Mr. Hurndall.

The only questions necessary to be considered arise on the plea of former conviction, and the correctness and sufficiency of the instructions given to the jury on that subject, under the pleadings and the evidence.

In Wilson v. State, 45 Tex. 76, the Supreme Court had before it a case involving a question quite similar to the one here presented, and took occasion to examine authorities ou the subject. The conclusion there reached is expressed in the opinion of the court in the following language: "Our conclusion is that the stealing of different articles of property belonging to different persons, at the same time and place, is but one offense against the State, and that the accused cannot be convicted on separate indictments, charging different parts of one transaction as a distinct offense. A conviction on one of the indictments bars a prosecution on the other." In Wilson's case the court cite Jackson v. State, 14 Ind. 327, where it was said in the indictment charged the defendant with stealing two horses. It appeared, that together with the horses, he stole saddles and bridles, though not so charged in the indictment, and this was objected to as a fatal variance. The court held that the omis sion to include in the indictment the other articles stolen at the same time, and forming part of a single offense, was for the defendant's benefit, if it had any bearing upon the case. "The State can

Hudson v. State.

not split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime." In Roberts v. State, 14 Ga. 8, the court said the plea of former acquittal or conviction is sufficient whenever the proof shows the second case to be the same transaction with the first.

In Addison v. State, 3 Tex. Ct. App. 40, the indictment charged the theft of three different animals belonging to different persons, but averred them to have been taken from the possession of one person holding the animals for their respective owners, and it was averred in the indictment that the theft was one and the same act, done at the same time and place, without the consent of the person holding the property. The indictment was held to be sufficient, and it was also held that "the taking of several articles or animals at the same time and place constitutes one offense, whether the several articles or animals belonged to the same person or to different persons." This, we are of opinion, still is the law of theft in Texas, settled on authorities conclusive in their nature.

In the case under consideration, under the pleading and the evidence, do the proofs show that the theft charged in the two indictments constituted separate offenses, or were they but parts of a single transaction, and did the court properly submit this question to the consideration of the jury?

In the general charge the jury were instructed to this effect: "If you are satisfied from the evidence adduced that the gold watch mentioned in this indictment was taken, if taken at all, at the same time and place, and from the possession of the same person, as the articles enumerated in the copy of the indictment attached to defendant's special plea of former conviction, then you will find said plea to be true, and say by your verdict, We, the jury, find defendant's plea of former conviction to be true, and find defendant not guilty.' If the evidence satisfies you that the gold watch mentioned in this indictment was not taken from the possession of the same person as the articles mentioned in the indictment in case No. 344, or was not taken at the same time or from the same place, you will find defendant's plea of former conviction to be untrue."

On the same subject the court gave, as shown by the bill of exceptions, at the request of counsel for the defendant, the following instruction: "When a variety of articles are stolen at the same time, and from the same place, and from the same or different per