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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.

244 U.S.

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, SS 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

244 U. S.

Argument for the United States.

and Duke (1689), 1 Ld. Raym: 267, 482; Skinner, 683; Comberbach, 447; Holt, 399; 1 Salkeld, 400; 12 Mod. 156; Lofft, 400; Regina v. Templeman (1700), 1 Salk. 56; Rex v. Hayes (1730), 2 Strange, 843; Rex v. Gibson (1734), 2 Strange, 968; Sessions Cas. 123; 2 Barnardiston, 412; Cunningham, 29; Commonwealth v. Cody (1896),. 165 Massachusetts, 133; Frey v. Calhoun (1895), 107 Michigan, 130.

The right to be present at every stage of the trial must be derived from the “due process” clause contained in the Fifth Amendment to the Constitution. The dicta in Diaz v. United States, 223 U. S. 442, 452, which assumed that this right is derived from the Sixth Amendment, cannot be supported by authority,

Assuming, therefore, that the right to be present at all stages of the trial is a necessary part of the "due process' guaranteed by the Fifth Amendment, two questions arise in this case: (1) Is a view actually, in law, a “part of the trial” at which the common law required the defendant to be present? (2) Was the right to be present at a view such an "essential” right as public policy forbids to be waived, under the doctrine of Hopt v. Utah, 110 U. S. 574, as explained in Lewis v. United States, 146 U. S. 370, 372, and Trono v. United States, 199 U. S. 521, 533?

The weight of authority and of. reason is to the effect that a view is not such a “part of the trial” as requires the defendant's presence. People v. Thorn, 156 N. Y. 286; Price v. United States, 14 App. D. C. 391, 405; 3 Wigmore on Evidence, $ 1803; Supp., vol. 5, § 1803. See State v. Ah Lee, 8 Oregon, 214.

That the right to be present at a view is not such an “essential” right as public policy forbids to be waived is to be seen from the fact that, at the early common law, it was optional with the defendant whether he would give his consent to be present at a view or not; and no view could be taken without the defendant's consent in a

Argument for the United States.

244 U. S.

criminal case, and such consent could be given by the defendant with or without conditions. It is clear that, at common law, if he consented to a view in his absence, a view could be had in his absence. Sir Edward Duncomb's Case (1635), Croke's Charles, 366; King v. Staughton (1671), 2 Keble, 665; 1 Sid. 464; 2 Saunders, 160; King v. Kingsmill (1714), 1 Sess. Cas. 87; Anonymous (1728), 1 Barnardiston, 144; King v. Hatchley Tradgeley (1732), 1 Sess. Cas. 180 (repeated as Anonymous, 2 Barnardiston, 214); King v. Redman (1756), Ld. Kenyon, 384; 5 Bacon's Abridgment, 375; Thompson's Trials, § 879; Commonwealth v. Chance (1899), 174 Massachusetts, 245; Commonwealth v. Knapp (1830), 26 Massachusetts, 496; Commonwealth v. Webster (1850), 59 Massachusetts, 295.

It would be contrary to public policy to hold that defendant's presence at a view is legally necessary and nonwaivable. In the first place, at no properly regulated inspection can a jury (or as in this case, a single justice) do more than observe the lay of the land and the disposition of the objects of interest connected with the crime. No evidence can be taken and no criticism or opinion offered by either side. There is, therefore, in spite of remarks in the cases, no valid reason necessitating the presence of the defendant. That is obviously the reason why defendants have so often waived the privilege of attendance. In the second place, in many parts of the United States, especially in Alaska and the Philippines, views may be taken of places hundreds or even thousands of miles away from the place of trial. In our Southern and Western States, also, views may be taken in distant places and sparsely settled regions. Facilities for travel may be limited; means of conveyance insecure. A requirement of the presence of the defendant, non-waivable by him, presents a real danger or added facility for the escape, or rescue, of the prisoner.

A conclusion, therefore, which would extend to a crim

244 U.S.

Opinion of the Court.

inal defendant a comparatively valueless privilege at the expense of the safe and effective execution of justice should be avoided if possible.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Valdez was proceeded against by complaint under the procedure of the Philippine Islands for the crime of murder. It was circumstantially described as having been committed by Valdez and one Francisco Amante and one Juan Gatmaitan, the latter having been induced by Valdez “by reason of a promise of reward” (900 pesos) to shoot one Eusebio Yuson with a shotgun furnished by Amante, inflicting nine mortal wounds, instantly killing Yuson.

There was a demurrer filed to the complaint which need not be noticed. Upon the trial of Valdez and Amante, after pleas of not guilty, the court in an opinion circumstantially reviewed the evidence and found Amante not guilty "for insufficiency of evidence." Valdez was found guilty "beyond reasonable doubt.” He was sentenced to the penalty of death and to indemnification of the family of the deceased.

At a separate trial Gatmaitan was also found guilty and sentenced to imprisonment for life.

There was a motion for rehearing which was denied.

Valdez and Gatmaitan took separate appeals to the Supreme Court of the Islands, but, according to the statement of the court, at the request of counsel, the appeals were “heard and considered together, in order to give counsel for the defense an opportunity to develop any inconsistencies or contradictions which might appear as a result of a critical analysis and comparison of the evidence of record in both cases."

The judgment against Valdez was affirmed; that against Gatmaitan was modified by the substitution of death for

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