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VAN DEVANTER, J., dissenting.

244 U. S.

as the law making power of the Government may permit.” Davis v. Elmira Savings Bank, 161 U. S. 275, 283; Van Reed v. People's National Bank, 198 U. S. 554, 557. Indeed, they are upon much the same plane as are officers of the United States, because their conduct can only be controlled by the power that created them. McClung v. Silliman, 6 Wheat. 598, 605. If it were otherwise the supremacy of the United States and of its Constitution and laws would be seriously imperiled. Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397; Tennessee v. Davis, 100 U. S. 257; State ex rel. Wilcox v. Curtis, 35 Conn. 374.

Thus much, as I understand it, is conceded in this court's opinion, the conclusion that the state court could entertain the information and proceed to judgment thereon, as was done, being rested upon an implied authorization by Congress. This authorization is thought to be found in the provision stating that the privilege claimed is given only "when not in contravention of State or local law” and in the provision in the Act of June 3, 1864, c. 106, $ 57, 13 Stat. 116, now in Rev. Stats., $ 5198, which makes suits against national banks cognizable in certain state courts. I do not find any such authorization in either provision.

The first does no more than to withhold the privilege in question from national banks located in States whose laws are opposed to or not in harmony with the possession and exercise of such a privilege on the part of the banks. It says nothing about judicial proceedings-nothing about who shall bring them or where they shall be brought. There is in it no suggestion that quo warranto proceedings were in the mind of Congress. Had there been a purpose to do anything so unusual as to authorize a state officer to institute and conduct such a proceeding in a state court against a federal corporation, is it not reasonable to believe that Congress would have given expression to that pur

244 U.S.

VAN DEVANTER, J., dissenting.

pose? As before indicated, it said nothing upon the point,-just as it would have done had no such purpose been in mind. But if the words “when not in contravention of State or local law” could be regarded as giving any warrant for a quo warranto proceeding by a state officer in a state court, I should say they would do no more than to permit such a proceeding to determine whether the privilege was in contravention of the state law. There is nothing in them which points even remotely to a purpose to sanction a proceeding to determine the power of Congress under the Constitution to clothe a national bank with the privilege indicated. That would be without any precedent in the legislation relating to federal corporations, and I submit that it is most improbable that Congress either did or would entertain such a purpose.

The provision cited from the Act of 1864 has been in the statutes for fifty-three years and no one seems ever to have thought until now that it was intended to authorize a proceeding such as this against a national bank. I think its words do not fairly lend themselves to that purpose. They have hitherto been regarded, and in practice treated, as referring to ordinary suits such as may be conveniently prosecuted against a bank in its home town and county. Besides, the terms of the provision show that it can have no application here. After providing for suing a national bank in the federal or territorial court of the district in which it is established, the provision adds, “or in any state, county, or municipal court in the county or city in which said association is located.” This bank, as the record discloses, is located in Bay City, Bay County. The proceeding was begun and had in the Supreme Court of the State at the capital, which is Lansing, Ingham County. Therefore the provision can give no support to the proceeding.

For these reasons I think the judgment should be re

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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 con

viction 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 yacillation 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.

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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,

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