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 life imprisonment. Two of the judges dissented, one thinking that the "accused," not designating him (presumably Valdez), was entitled "to an acquittal under the facts presented"; the other being of opinion that the prosecution had "not proved the guilt of the appellants of the crime of which they were convicted." The case is here upon a writ of error sued out by Valdez and the questions presented are, to quote counsel: (1) Whether the absence of the accused during a part of the proceedings in the trial constitutes an error requiring reversal, and (2) whether there was any evidence adequate to warrant the conviction. The second question may be disposed of first. A negative answer is urged upon a consideration of the credibility of the witnesses, the relative probative strength of their testimonies, their mental and moral defects, the various statements of Gatmaitan, being a witness for the prosecution, first testifying to the guilt of Valdez and by subsequent statement retracting the accusation, and later retracting the retraction, and an asserted absence of motive for the crime. The elements of these contentions were passed upon by the lower courts and the guilt of Valdez and Gatmaitan determined. It ordinarily would be enough to say that there was justification for the determination; but lest it may be supposed that the guilt of Valdez depended alone upon the testimony of Gatmaitan, he having been an active accomplice in the homicide, some comment becomes necessary and at least a characterization of the evidence. Gatmaitan's testimony was, of course, an important factor, but it had substantial corroboration. He was shown, it is true, to be a low type of man. One who becomes for hire as he did the criminal executor of another's malice is usually such. No other would accept the shameful service. But it is not reserved for this case to make a novel contribution to the criminal experience of the country or to demonstrate that there are such hirers and hirelings, and when the hireling turns state's evidence, as he sometimes does, or his weakness, awed by the penalties of his crime, breaks down and confesses, as it sometimes does, or he changes or qualifies or retracts, as he sometimes does, as hope or interest or fear sways him, his testimony or confession is not to be summarily discarded but to be judged of by confirming or opposing circumstances as well as by his character and the influences that may invest him. And it was such judgment the two lower courts exercised; it is such judgment in our turn that we are required to exercise. This record, indeed, shows that the character and characteristics of Gatmaitan, his mental and social inferiority to Valdez, made him facile to Valdez' solicitation and a purchasable agent for Valdez' purpose. And Valdez was shown, independently of Gatmaitan's testimony, to have had a purpose-a fixed enmity to Yuson, engendered in a controversy over certain water rights. In gratification of it he carefully planned the crime, set its time and place, procured its weapon, gave the weapon to Gatmaitan, and hired a scout to observe the movements of Yuson and report his approach. The service was exactly performed, and upon his approach occurred the tragedy. Yuson was shot in the back and instantly killed as he was entering his home, and the crowning horror of it was that it was done in the hearing and almost in the presence of his wife, even as she was speaking to him and moving to meet him. Such is the outline of the crime. And crime it was. There is no dispute about that or the manner of execution. Valdez as a witness in his own behalf denied participation in it or precedent knowledge and attempted to prove an alibi. His denial was not believed, his alibi decided not to have been established. It cannot be held, therefore, |