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CLARKE, J., dissenting.

244 U. S.

known as the “Philippine Bill,” and also Article VI of the Amendments to the Constitution of the United States, providing that the accused “shall enjoy the right to be confronted with the witnesses against him.”

What was done by the judge at this view is the subject of much dispute and conflict of statement made in affidavits on motion for a new trial. A typical statement in the interest of the accused of what occurred is made by his attorney, who is described in the record as a reputable member of the bar, who stated that the widow of the deceased explained to the judge what she claimed had taken place on the night of the murder, pointing out where the deceased had fallen, and discussing many other matters in connection with the case, she weeping and wringing her hands all of the time that such interview was in progress, and that one Crockett, a constable, was active in indicating to the court various points and circumstances connected with the murder, all of this against objections made by counsel as to the conduct of the widow and Crockett.

A typical affidavit introduced by the State was by the private prosecutor Buencamino, who stated that he was present at the view, that the judge “neither received any evidence nor admitted any testimony referring to the case then being prosecuted against Valdez, and according to my best recollection I did not see the widow crying, but I saw her at a place distant from the judge. I also state that Captain Crockett did not give any evidence before the judge.”

An assistant attorney for the Government made affidavit that at no time did he see the widow crying or talking to the judge, or illustrating how her husband had fallen.

However, a photograph of the scene at the time of the view indicates that it must have been a very unusual local event for a large crowd was present, and in this photograph the widow is shown in a position which must have been

244 U. S.

CLARKE, J., dissenting.

very close to the judge and it is very significant that there is no statement from the judge as to just what he did and as to what occurred at the view.

It has long been familiar, textbook, law, that a viewing of the premises where the crime is alleged to have been committed is part of the trial. Thus, in Wharton's Criminal Pl. & Pr., 9th ed., $ 707, it is said: “The visit (of the jury) must be made

in the presence of the accused, who is entitled to have all evidence received by the jury taken in his presence.” And in Enc. of Pl. & Pr., vol. XXII, p. 1059, it is said:"In criminal cases the accused is entitled to be present if the jury is sent to view the locus of the crime, as a view in the absence of the accused would violate his constitutional right to appear in person and be confronted with the witnesses against him.”

But the law upon this subject has been recently summed up by this court (Diaz v. United States, 223 U. S. 442, 454) in an admirable statement, which in my judgment rules the case before us, and is as follows:

We are thus brought to the question whether the provision in § 5 of the Philippine Civil Government Act, securing to the accused in all criminal prosecutions 'the right to be heard by himself and counsel,' makes his presence indispensable at every stage of the trial, or invests him with a right which he is always free to assert but which he also may waive by his voluntary act. Of course if that provision makes his presence thus indispensable, it is of no moment that the Philippine laws do not go so far, for they cannot lessen its force or effect. An identical or similar provision is found in the constitutions of the several States, and its substantial equivalent is embodied in the Sixth Amendment to the Constitution of the United States. It is the right which these constitutional provisions secure to persons accused of crime in this country that was carried to the Philippines by the congressional enactment, and, therefore, according to a familiar rule,

CLARKE, J., dissenting.

244 U.S.

the prevailing course of decision here may and should be accepted as determinative of the nature and measure of the right there. Kepner v. United States, 195 U. S. 100, 124.

In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction.

“The reasoning upon which this rule of decision rests is clearly indicated in Barton v. State, supra, [67 Georgia, 653] where it is said by the Supreme Court of Georgia: “It is the right of the defendant in cases of felony

· to be present at all stages of the trial-especially at the rendition of the verdict, and if he be in such custody and confinement

as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside.

The principle thus ruled is good sense and sound law; because he cannot exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the court by its order.''

It is difficult to imagine a case which would show the value of this rule more strongly than the case we are considering. If the description of what occurred as given by counsel for the defendant is even approximately true it is not improbable that even the most stoical judge might have been influenced by it, and the presence of the defendant might very well have had a counterbalancing

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CLARKE, J., dissenting.

influence, and in addition to this he was entitled to the benefit of any suggestion which he might have been able to make through his counsel.

It is very clear to my mind that Diaz v. United States, supra, in principle rules this case and that the viewing of the scene of the murder by the judge without the presence of the accused requires that it be reversed and a new trial granted.

That the conclusion I have reached in this case is not idiosyncratic or the result of an undue regard for a man's life when it is adequately proved to have been forfeited under the law is, I think, sufficiently shown by the fact that two of the members of the Supreme Court of the Philippine Islands expressed their estimate of the case made against Valdez by this record in these terms:

Moreland, J., dissenting: “I dissent. I think that the least the accused is entitled to under the facts and the law is a new trial. I believe, however, that he is entitled to an acquittal upon the facts as presented.” And Grant T. Trent, J.: "I dissent on the ground that

the prosecution has not proved the guilt of the appellants of the crime of which they were convicted."

For the reasons thus stated, I am of opinion that this record does not show any credible testimony supporting the judgment, that upon the authorities cited it rests upon error of law gravely prejudicial to the accused and that it therefore should be reversed and a new trial granted.

I am authorized to say that the CHIEF JUSTICE concurs in this opinion.

Counsel for Parties.

244 U. S.

EX PARTE INDIANA TRANSPORTATION COM

PANY, PETITIONER.

ON PETITION FOR WRIT OF PROHIBITION.

No. 25, Original. Argued May 21, 1917.-Decided June 11, 1917.

The foundation of jurisdiction is physical power.
Appearance in answer to a citation issued upon a libel in personam does

not empower the court to introduce new claims of new claimants into the suit without service on the defendant and against his

will.

After defendant had appeared in a suit against it for causing the

death of one person, the court allowed to be filed an amended libel introducing 373 new libellants, each alleging a distinct cause of action based on as many other deaths due to the same accident. Defendant excepted to the amended libel upon the ground that it was contrary to law (1) because it joined 373 new libellants who had separate causes of action, and (2) because it could not “in law, in this case, be called upon to answer the said amended libel as to 373 additional libellants.” Held that this was not a general appearance and that want of service upon the defendant was sufficiently set

up by the second ground of exception. Quære: Whether the principles of waiver and appearance are not

modified in a case where the defendant is already in court and the objection to jurisdiction relates to the introduction of new com

plainants? When objections to the jurisdiction have been overruled, the defendant

does not waive them by pleading to the merits. Prohibition granted.

The case is stated in the opinion.

Mr. Charles E. Kremer and Mr. Russell Mott for petitioner.

Mr. Harry W. Standidge (by special leave) in support of return of respondent.

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