# State v. Vasquez > Utah Supreme Court · February 7, 1942 · 101 Utah 444 URL: https://www.frixlaw.com/law-library/cases/3988180 ## Case - **Full name:** State v. Vasquez. - **Court:** Utah Supreme Court - **Decided:** February 7, 1942 - **Citations:** 101 Utah 444; 121 P.2d 903; 140 A.L.R. 755; 1942 Utah LEXIS 12 - **Precedential status:** Published - **Opinion:** Concurrence by Wolfe - **Judges:** Moffat, Wolfe, McDonough, Peatt, Larson - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3988180 ## How later opinions describe it (automated extraction) - reversing conviction of a Mexican national who was denied an interpreter ## Opinion text WOLFE, Justice (concurring in the result). The Court’s opinion unwittingly gives the impression that Vasquez was purely on the defense when he shot Vargas; that Vargas was after Vasquez with an ice pick because there was evidence that one was near Vargas when he fell although evidence of this is in dispute. This partial recital of the facts gives a wrong impression of the whole picture. It appears from the evidence that on the night of the tragedy one Maximo Ruiz, a roommate of Vasquez, and the latter left their home with the intention of going to a picture show. Vasquez paused to talk with a neighbor and Ruiz walked ahead on Woodbine Avenue to Second South Street, waited there, then proceeded by himself east to the Corona Cafe located at 528 West Second South Street where Vargas called to him. A few moments later Vasquez proceeded out of Woodbine Avenue, thence east on Second South and as he passed the Corona Cafe looked in the window, stopped, turned around, walked west on Second South and back again to Woodbine Avenue. Within a short time Vasquez was again seen coming out of Woodbine Avenue. He then went west on the north side of Second South, crossed to the south side of the street, walked east to Fourth West where he again crossed Second South to the north side of the street, nearly completing a rectangle. On the northwest corner he talked with Perfecto Ruiz for at least ten minutes. About that time Vargas and his two friends came out of the cafe and proceeded east along Second South Street. Vargas offered his friends cigars, lit one himself and started to smoke it. As they then approached Fourth West Street, Vasquez started west to meet them. When Vargas saw Vasquez, he Vargas, started to jump behind a tree and as *455 he did so Vasquez shot twice. One of the bullets took effect and Vargas fell to the sidewalk and started to crawl toward Vasquez. Vasquez then walked — the evidence says laughingly up to Vargas and shot the gun three more times. He then grabbed hold of Vargas’ hair, pulled his head up and placed the gun against it and pulled the trigger but the gun had been emptied. Under these facts the jury may well have come to the conclusion that Vasquez deliberately sought Vargas out in order to kill him; that he went back for a gun for that purpose. The testimony in regard to Vargas having an ice pick (itself in conflict) might have seemed to the jury to make out a poor case of self-defense for Vasquez under the circumstances mentioned. I have set out the evidence of the movements of Vasquez because the opinion of the court seemingly gives the impression that Vargas was about to attack Vasquez and the latter was defending himself. I think the more complete picture should be portrayed. The court did not err in refusing to furnish defendant an interpreter so that he could understand the witnesses testifying in English. There was no showing that the defendant could not provide himself with such facilities. The court will furnish counsel for an impecunious defendant in a criminal case; also if it is shown that defendant cannot understand the language in which the testimony is given and knows no friend who could interpret between him and the witness or between him and his counsel in the court room, such facility might well be provided at the expense of the State. But if there is a duty on the part of the court to do so, and I am by no means convinced that there is, certainly such duty depends on a proper showing. This is not a case in which the defendant was defending per se. He had counsel who understood the language of the witnesses and cross-examined them. The court took no antagonistic attitude toward the defendant providing himself with an interpreter — in fact, suggested that there was “no objection to the defendant, if he has friends that can speak En *456 glish and can speak Spanish, sitting near him and assisting him in every way possible.” I think no constitutional right was violated in refusing the defendant a private interpreter. As to the right of defendant to testify in his own language: The defendant’s attorney requested that his client be permitted to testify in his native tongue. The prosecution resisted until there was a show of necessity. The court observed that there was some evidence in the record that defendant had answered questions put to him in English and that “I think we ought to make an attempt to see if he can speak and understand English.” To this counsel for defendant remarked: “I have used an interpreter when I talked to Mr. Vasquez about important matters and I have found he does not understand me fully and there are many times he does not understand,” to which the Court rejoined, “The Court does not have to take your word for that.” Counsel asked for a ruling but the court refused to rule at that time desiring to ascertain by a demonstration whether the defendant could sufficiently understand and answer. Counsel for the defendant then asked the witness whether he had “difficulty in understanding all that is said to you in English.” An objection was interposed wherefore the court stated “I am going to decide that, not him.” Counsel for the defendant then stated “inasmuch as the court won’t rule on that request for an interpreter, I will withdraw the defendant from the stand, and the defendant rests his case.” I cannot see error in the court’s action. While a defendant is entitled to an interpreter where he cannot adequately express himself the jury is also entitled to have the benefit of his testimony directly if it can be conveyed to them in English. All of us who have sat as trial judges know that there have been times when witnesses who are familiar with a foreign tongue have sought to testify through interpreters because it has enable them to fashion a story with a facility impossible if their testimony must be expressed in the sim- *457 pie English terms with which they; are familiar. Certainly the reaction of the witness, his demeanor on the stand is much more discernable to the juror when questions and answers are framed in English. And the intelligent judge and juror does not have much difficulty in determining after a short period whether the continuance of the attempt to convey the witness’s impressions in English are fruitful or whether he is pretending or honestly having difficulty. This in itself is a valuable index to demeanor. The court certainly was entitled to ascertain through its own observation the ability or inability of the witness to carry on in English. Instruction No. 9 admonished the jury to “take into consideration all of the facts and circumstances shown by the evidence in the case surrounding the fatal shooting which would appeal to your judgment as reasonable men and from these facts or circumstances determine whether or not you will make such recommendation.” (Italics added.) It is true that the jury has unlimited discretion to make the recommendation. Admiration for some quality displayed by the defendant in the court room, sympathy for his family or even a satisfaction in his sartorial attire could be the basis of the recommendation but we think of the discretion as being based on reason and on some extenuating fact or circumstances of the case which moves the reason and not on capriciousness. While I think the language of the Instruction may have been susceptible of the interpretation that the discretion must be based on circumstances or facts surrounding the fatal shooting, certainly if we gave the phrase “surrounding the fatal shooting” the scope which it is naturally susceptible, i. e., leading up to and attending the shooting and following the shooting, it could have done no harm for such is what the jury should in reason have taken into consideration as the basis for a recommendation. There certainly is not the slightest ground for thinking that a jury otherwise ready to recommend life was constrained not to do so by this instruction. *458 Complaint is made that the court instructed as to when malice is presumed when there was no presumption (Instruction No. 15) in the case. True, the instruction is introduced with a statement of a situation in which malice is presumed because of the manner and state of mind in which the killing was accomplished and then goes on to say that since the facts and circumstances attending the killing were shown, the question of malice was to be determined as a matter of fact and not upon a presumption. While giving to the jury the law as to when malice is to be presumed was unnecessary, certainly the remainder of the instruction was most clear and definitely showed that presumption had no application. Some latitude by the way of introduction and rounding out must be allowed the Court. Nothing in this instruction was prejudicial. Instruction No. 6 recited the nature of acts by which murder in the first degree could be committed. It was in the abstract and while the entire statute was not applicable to the facts of this case no possible prejudice could have resulted in the light of the evidence which definitely excluded a killing not specifically intended. Likewise, Instruction No. 8 defines as one of the necessary elements the intentional killing of Vargas or death of Vargas by the intention to “effect the death of any other human being other than the one who was killed.” The quoted portion was so obviously not applicable to the facts that the jury could not by any stretch of the imagination have applied it to the case. The evidence set out hereunder shows an intention to kill Vargas and Vargas alone. The evidence could not possibly have been given any other meaning. There was no prejudicial error in these instructions. The most serious question presented for our decision is whether the defendant was entitled to introduce his own statements as to his attitude toward the deceased. The evidence tendered but rejected was as follows: *459 “This witness will testify that Guadalupe Vasquez, at the time and that place said that through certain people he had heard that Juan Vargas was in town and was looking for Vasquez, and was going to get Vasquez. * * * And he had heard this from other people. And then the witness will testify that he discussed those reports with Mr. Vasquez, and the witness will then continue to testify that he advised Mr. Vasquez to pay no attention to those threats he had heard about, and that it was best to forget about it. The witness will further testify that Mr. Vasquez said “All right, I will forget about if he will let me, but I cannot take another beating.” This evidence was not admissible under the res gestae rule. Should it have been admitted under any other rule? The theory on which this was proffered was that it tended to show the absence of ill will on part of defendant toward deceased and hence tended to negative that defendant had been the aggressor. Defendant relies heavily on Dean Wig-more’s opinion that such statements should be admissible on the theory that if defendant’s statements showing ill will are admissible, his statements showing good will should likewise be admissible. I cannot subscribe to Dean Wig-more’s proposition in its full scope. Self-defense is one of the easiest of concocted defenses in certain sorts of killings where there has been a previous quarrel. One who has designs on the life of an alleged enemy would be quite apt to build a defense if the law permitted his statements previous to the killing to strengthen that defense. Such was the opinion of the Court in Bryce v. State, 167 Miss. 255 , 148 So. 348 ; Woods v. State, 115 Tex. Cr. R. 373 , 28 S. W. 2d 554 ; State v. Davis, 30 N. M. 395, 234 P. 311 , where the accused went to the authorities and stated that he was fearful of deceased and needed protection or would protect himself. In these cases the statements of accused were initiated purely by him. The cases of Birdsong v. State, 47 Ala. 68 , and Russell v. State, 119 Tex. Cr. R. 469 , 45 S. W. 2d 622 ; Fleenor v. Commonwealth, 255 Ky. 526 , 75 S. W. 2d 1 , show situations where the statements of accused were not initiated by him but naturally flowed out of or were responsive to circumstances or conversation which elicited his statement. *460 Statements so made would ordinarily be guaranteed against contrivance and intent to manufacture a defense in advance. The failure of the cases to make this distinction arises largely out of the judicial tendency to fit all situations into a fixed conceptual framework. Thus, a statement made by a defendant which serves him is self-serving. But there are exceptions to the general rule that statements made by persons which ultimately enure to their benefit are self-serving. I see no objection to extending those exceptions where the statements are attended by sufficient guarantees against their utterance for premeditated future use. The testimony of Perfecto Ruiz tendered was of this class. While the conversation may have been begun by the defendant, his material statement was a response naturally elicited by Ruiz’s admonition to “forget about it.” It should have been admitted. The first portion shows the circumstances out of which the statement of the defendant’s willingness to “forget” arose and the last portion the statement itself. Having the view of the matter just indicated, it becomes unnecessary to consider the question of whether a third party’s testimony of defendant’s extrajudicial statement that he had heard that Vargas had threatened him was admissible to prove a communication of threat, whether such statement was true or false. It might be noted that under Chapter 7 of Code of Evidence (Tentative Draft No. 2) of the American Law Institute, Ruiz’s statement would have been admissible, even though hearsay. Nor is it necessary to consider the Utah cases of State v. Coyle, 41 Utah 320 , 126 P. 305 , and State v. Allen, 56 Utah 37 , 189 P. 84 , which appear to present situations where the statements of the defendants admitted to show a state of mind favorable to their defense were prompted by extraneous stimulation which furnished the guarantee against any intent to manufacture evidence. I am not sure that the refusal to admit the statement of Ruiz is prejudicial error. It may well be that the jury would, in view of the facts, have still concluded that the defendant *461 entertained a vicious attitude toward Vargas and sought to give it vent. There was evidence that at their first quarrel Vasquez, after an insulting remark to Vargas which provoked Vargas to start after him, drew a knife which stopped Vargas in his pursuit with the remark, “you win.” After this Vasquaz in apparent friendliness brought over to Vargas the latter’s unfinished bottle of beer and when Vargas reached for it, Vasquez hit him over the head with the bottle wherefór Vargas “beat up Vasquez.” This was the quarrel that lead to the shooting. It reveals Vasquez as provocative and underhanded, and Vargas as one not seeking but not running away from a quarrel. Certainly under all the evidence of this case I am quite doubtful whether, if the evidence of Ruiz had been admitted, the result would have been any different. The conclusion of the majority seems to have been influenced by what it deemed the antagonistic attitude of the trial judge; that he was short and curt with defendant’s counsel and that this carried over to the jury. Otherwise I see no reason for introducing into the opinion what transpired between court and counsel at the time of arraignment. The general attitude of a trial judge may be so hostile as to influence the jury and result in denial of a fair trial but if so, sufficient evidence of that should be pointed out from the record. The trial judge may not have been so dour in this case as the cold record may seem to indicate. Perhaps we should accord to him the benefit of expressions, tone of voice and inflections that may soften the apparent abruptness of expression when transmitted in cold print. Having, however, some doubt as to whether the failure to admit the testimony of Ruiz might not have been prejudicial. I shall vote with the majority for reversal. I therefore concur in the result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3988180. Public record. Not legal advice.