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versed with a direction to dismiss the information for want of jurisdiction.

MR. JUSTICE DAY authorizes me to say that he concurs in this dissent.

VALDEZ v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 361. Argued April 23, 24, 1917.-Decided June 11, 1917.

The testimony of an accomplice who turns State's evidence in a murder case is not to be discarded because of his base character, or his oscillating retraction and reiteration of the charge, but must be accorded such weight as is due it when judged by confirming or opposing circumstances, by his character and the influences which invested

him.

In this case the court, considering evidence on which was based a conviction of murder, concurred in by the court of first instance and the Supreme Court of the Philippine Islands, holds that the doubts aroused by the character and vacillation of the government's chief witness (who testified that he was hired by the defendant and did the killing under his direction), are not such as to justify a reversal in view of the corroborating evidence, including evidence of a motive on the part of the defendant, and the absence of any doubt that murder was actually done.

A view of the scene of the murder by the trial judge does not deprive the accused of his constitutional right, carried to him by the Philippine Code, to "meet the witnesses face to face," where the view is conducted in the presence and with the consent of his counsel, and no testimony is taken, and no improper remarks are addressed to the judge.

The right of the accused to be present during the inspection may be waived by his counsel; but, even when the right is not waived, his absence will not warrant a reversal if no prejudice resulted. 30 Phil. Rep. 293, affirmed.

244 U. S.

Argument for Plaintiff in Error.

THE case is stated in the opinion.

Mr. Timothy T. Ansberry, with whom Mr. Challen B. Ellis was on the briefs, for plaintiff in error:

The argument of Mr. Ansberry for the defendant was devoted to the facts and to the proposition that the absence of the accused during the view taken by the judge of first instance was fatal error. The accused, he said, was in jail at the time and had not consented. Section 5 of the Philippine Civil Government Act secures in all criminal prosecutions the right of the accused to be heard by himself and his counsel. Section 3270 of the Philippine Laws, Comp. Stats. 1907, declares: "In all criminal prosecutions the defendant shall be entitled to appear and defend in person and by counsel at every stage of the proceeding." It is unnecessary to argue at length the interpretation of these provisions, or the question of the rights of an accused in a felony case and the circumstances under which they may and may not be waived, for these questions are now settled by the recent decision in Diaz v. United States, 223 U. S. 442.

There this court laid down the rule of interpretation of Philippine Laws to be that the prevailing course of decision in the United States should be accepted as determining the nature and measure of the rights provided, and held that, by the prevailing course of decision in the United States, an acoused who is on trial charged with a capital offense is incapable of waiving the right to be present.

There is only one subject remaining, and that is whether the rule is different when the proceeding was a view of the premises, and not the taking of testimony in the court room, instructions to the jury, etc. There is some authority for the proposition that a view of the premises is not "a part of the trial" on the ground that it does not involve the obtaining of evidence. Decisions to this effect

Argument for Plaintiff in Error.

244 U. S.

are mainly those dealing with the question as to whether a review on appeal is prevented by lack of a complete record when it appears that the jury viewed the premises; and the solution of the difficulty in some of the cases is that review may be had because a view of the premises is not a part of the trial. Some authorities have carried this suggestion into criminal cases where the question arose as to the necessity for the presence of the accused at a view of the premises. But without attempting to analyze these authorities, or the cases the other way, it is sufficient to say that both sound reason and the weight of authority support the proposition that a view of the premises in a criminal case is a part of the trial. 3 Wharton Criminal Law, 7th ed., § 3160; 22 Encyc. Pl. & Pr. 1059; Tully v. Railroad Co., 134 Massachusetts, 499; Wall v. United States Mining Co., 232 Fed. Rep. 613; People v. Milner, 122 California, 171; Benton v. State, 30 Arkansas, 328.

The whole theory upon which the accused is given a right to be present at the trial applies with equal force to his presence at a view of the premises. The right to be present, "scarcely less important to the accused than the right of trial itself" (Diaz v. United States, supra), was clearly not intended to be limited to any particular occasion, or any particular kind of proceeding in the trial, but extends to "any steps taken" (Hopt v. Utah, 110 U. S. 574) "from the empanelling of the jury to the reception of the verdict," and during this time "nothing shall be done in the absence of the prisoner" (Lewis v. United States, 146 U. S. 371, 372).

And what is true of a criminal trial before a jury is equally true of a criminal trial had, as in the Philippines, before a judge only. Diaz v. United States, supra.

The right of the accused to be present is given him, undoubtedly, that he may have the opportunity to observe, and be observed, at every step taken so that he may make the best use of his own knowledge of the facts,

244 U. S.

Argument for the United States.

and use that knowledge either in his testimony or in his conferences with counsel. At any moment of the trial something may arise which needs supplementing by facts of which the accused knows, or something may appear, either by observation of the jury or in oral evidence, which can be easily explained by the knowledge which the accused has. To say that the accused must be present when testimony, already transcribed, is read, or when the court instructs the jury, but that he need not be present when the jury is making an examination of objects and places about which the testimony centers and confirming or testing the testimony by actual view, ignores the real reason for the right.

But whatever may be the contention as to the proper function of a view of the premises, there can be no doubt that in the case at bar there was the "taking of evidence" at the view of the premises. People v. Hull, 86 Michigan, 446; People v. Green, 53 California, 60; State v. Bertin, 24 La. Ann. 46.

If any doubt could remain as to the right of the accused to be present at the view, because of any technical definition of the word "trial," it is disposed of by the broad language of the Philippine Code, which refers specifically to "every stage of the proceedings." See Hopt v. Utah,

supra.

The Solicitor General and Mr. Assistant Attorney General Warren for the United States, submitted:

The plaintiff in error bases his right to be personally present at the view taken by the single judge trying the case without a jury upon § 5 of the Philippine Organic Act and § 3270 of the Philippine Compiled Statutes, which embody the provisions of the Fifth and Sixth Amendments to the Constitution of the United States conferring three distinct and separable rights: (a) The right of confrontation with the witnesses against him; (b) the right to be heard

Argument for the United States.

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by himself and counsel; (c) the right to be present at every stage of the trial.

The alleged right of a defendant to be present at a view cannot be derived from the right of confrontation with witnesses given by the Sixth Amendment. Such right applies only to testimonial evidence. Mattox v. United States, 156 U. S. 237, 242; Dowdell v. United States, 221 U. S. 325, 330; Kirby v. United States, 174 U. S. 47, 54, 55. See also Mattox v. United States, 146 U. S. 140; Holt v. United States, 218 U. S. 245, 252, 253; Reynolds v. United States, 98 U. S. 145.

The plaintiff in error claims that the right to be present at every stage of the trial is derived from the constitutional right to have the assistance of counsel for his defense. The right to have the assistance of counsel originated at a later period than the right to be present at every stage of the trial. As to the abuses which led to the adoption of this clause of the Sixth Amendment, see 2 Story on Constitution, §§ 1793, 1794. And see also 4 Black. Comm. 355; Foster's Crown Cases, 231, 232; 1 Bishop's New Criminal Procedure, §§ 14–22, 120.

The right of a defendant in a criminal case to be present at all stages of the trial, on the other hand, is a right which had long been secured to him at common law before the right to have counsel was granted to him and, therefore, is clearly not derived from the Sixth Amendment to the Constitution. Its derivation from the early English common law is well stated in Ball v. United States, 140 U. S. 118, 131. For further authorities from the common law, see Statute of 28 Edward III, c. 3, 1354; 4 Black. Comm. 318; and the following cases: Rex v. Bacon (1664), 1 Keble, 809; 1 Levinz, 146; Rex v. Vipont (1761), 2 Burr, 1163; Rex v. Aiken (1765), 3 Burr, 1785; Rex v. Crowther (1786), 1 T. R. 125, 127; Rex v. Baker (1745), 2 Strange, 1239; Rex v. Nicolls (1745), 2 Strange, 1227; Rex v. Legingham (1670), 2 Keble, 687; T. Taym. 193; Rex v. Harris

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