Lead Opinion
delivered the opinion of the court.
The defendant, W. Y. Noell, was indicted for an attempt to commit rape upon one Lora Cee, a female twelve years of age. The jury found him not guilty of the attempt charged, but guilty of an assault, and fixed his punishment at a fine of five hundred dollars and imprisonment in jail for a term of twelve months. The court, having first overruled a motion for a new trial, pronounced sentence in accordance with the verdict, and thereupon the defendant obtained this writ of error.
The question which we shall consider first arises out of the denial by the lower court of the defendant’s motion to set aside the verdict of the jury and grant a new trial. Among the grounds upon which this motion was based were these:
(a) “That during the trial of this cause, as shown by affidavits herewith filed and asked to be made a part of the record, the jury, under the circumstances set out in affidavits, was allowed to view the premises and make certain tests and obtain certain evidence in the absence of the accused, thereby rendering the verdict of said jury void and of no effect.
(b) “That the jury was sent by the court to view the premises and that said jury went through a series of tests as shown by affidavits hereto attached, thereby
The material facts with reference to the view by the jury are these:
At the conclusion of all the evidence in the case, and without any motion for a view by either the Commonwealth or the defendant, the following colloquy took place between the court and counsel:
“By the Court: The gentlemen of the jury have expressed a desire to see the premises. Let the sergeant take them over there while we are preparing the instructions in this case.
“By Mr. Harris: With instructions to the sergeant that nobody else goes with them?
“By the Court: Yes, sir.”
No protest or objection was made by either side to the suggestion of the court, and the sergeant thereupon took the jury to the scene- of the alleged crime, returning with them in about fifty minutes. Neither the prisoner nor counsel on either side nor the judge accompanied the jury, and while they were out for the view the court and counsel were in the judge’s chambers discussing the instructions.
No directions were given by the court to the jury or to the sergeant as to the manner in which the view should be made, or as to their conduct at the scene. It was charged that the offense was committed on the fourth floor of a tobacco factory. The prosecutrix had testified that she screamed for some minutes when the defendant made the alleged attempt and before he was finally repulsed. The latter had denied the charge against him, and, in order to corroborate him and to
We are called upon„to decide several independent but kindred questions arising upon the foregoing facts. The first of these is whether the trial courts in Virginia have jurisdictional power to direct a view by the jury in any ■case unless requested to do so by one of the parties to the litigation. There was no such request in this case, the view having been directed because “the jury expressed a desire to see the premises.” Section 6013 of the Code, so far as material here, provides that: “The jury may, in any ease, civil or criminal, at the request ■of either party, be taken to view the premises or place in question, or any property, matter or thing relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision.” This provision in the statute law of the State first appeared in the Code of 1849 (chapter 162, page 629, section 10), and with the exception of the words “civil or criminal,” added by the act of December 10, 1903 (Acts 1902-3-4, page 605), has remained unchanged.
Whether as a matter of common law the trial courts Ihave the power in their discretion to permit the jury to visit and view the premises is a question upon which
So far as we have been able to find, no case ever came to this court in which a view was ordered prior to the enactment of the statute on the subject, and none since in which the view has been ordered without a motion by one of the parties. The statute undertakes to occupy the whole field upon this subject, and in our opinion a view ought not to be ordered in any case except upon the motion of one or both parties, or by consent of both parties, which would be tantamount to a joint motion. It would, we think, be error to order a, view over the protest of both parties, but where, as here, neither party objects, we hold that their acquiescence is equivalent to consent. The contention of the accused that it was error to permit the view in this case because neither party moved for it is, therefore, overruled.
The next inquiry to be disposed of is this: When a view is ordered in a felony case, does the prisoner always have the right to accompany the jury if he so de
In Starr v. State, 5 Okl. Cr. 440, 115 Pac. 356 (one of the leading cases in support of the proposition hereinafter discussed that the prisoner may waive his right to be present at the view), the court says that “it would be better and safer for him to accompany the jury, if convenient, to see that nothing improper occurs at the view.” And it may be confidently asserted that the authorities generally are in accord in holding that the trial courts ought always to permit the prisoner to attend if he so desires. As said in State v. Slorah, 118 Me.
This brings us to the more difficult and more important question, whether an accused person on trial for a felony can waive his right to be present at the view.This precise question has never been definitely decided in Virginia. The decisions in the other States are in such conflict, due partly to varying constitutional and statutory provisions and partly to contrariety of reasoning and opinion among judges in construing such provisions, that we find ourselves unable to rest the decision in this case entirely upon precedent. We must, therefore, undertake to settle the meaning of the pertinent Virginia statutes upon principle, in the light of certain doctrines which have become firmly embedded in the criminal law of the State, and with the aid of such decisions from other jurisdictions as seem to us most in point and best sustained by reason.
Section 4894 of the Code of 1919 provides: “A person tried for a felony shall be personally present during the trial, * * *. But for the purpose of this section, a motion for a continuance, whether made before or after arraignment, shall not be deemed a part of the trial.”
We need not here enter into any discussion of the origin and history of this statute further than to say that the first sentence above quoted was merely declaratory of a principle of the common law. 3 Rob. Pr. (old) 267; 1-Chit. Cr. Law, 414; 1 Bish. Cr. Pr., see. 688. That principle did not spring solely from a regard for the welfare of the accused. The public has an interest in every case involving the life or liberty of a citizen, and both in England and in this country it has long been
The principle is well illustrated and well stated in Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262. That was a felony case in which certain challenges to the competency of jurors were tried in the absence of the prisoner, but with his knowledge and without objection on his part. Upon appeal from the Supreme Court of the Territory of Utah to the Supreme
“We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, ‘cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority.’ 1 Bl. Com., 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offenses committed, but the prevention of future offenses of the same kind. 4 Bl. Com., 11. Such being*611 the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.” .
It remains, then, to determine whether or not a view by the jury as authorized by our statute is to be regarded as a part or stage of the trial. This, it must be carefully remembered, and not the power of the prisoner to waive his presence, if it is a part of the trial, is the open question. If the view is to be so regarded, then the prisoner must be present, and no waiver or consent on his part can dispense with this requirement. This is conclusively settled by the above authorities and is not open to debate.
The decision of the open question depends upon whether a view is to be considered as constituting a source of proof for or against the accused. It will hardly be contended that there can be any introduction of proof before the jury in the absence of the prisoner. Even in those cases in which it has been held as a general proposition that the presence of the prisoner at a view is not essential, it is never questioned that if evidence is taken during the view in the prisoner’s absence he cannot be convicted.
As already indicated, the decisions in other jurisdictions upon the instant question are in conflict. The opinion in State v. Slorah (1919), 118 Me. 203, 116 Atl. 768, 4 A. L. R. 1256, while reaching some conclusions in which we are unable to concur, contains such a fair and
The courts nowhere have been more zealous than the courts of this State in holding that a prisoner in felony cases must be present at every stage of the trial when anything is done which can affect his interests. Gilligan’s Case, 99 Va. 816, 827, 37 S. E. 962. And it follows as a matter of course that if a view by the jury has any probative value or force, it may materially affect the interests of a person on trial for crime. Has it any such value or force? If it has, it is a part of the trial which, under our decisions, can not be waived.
We are aware that until the recent decision in Lorillard Co. v. Clay, 127 Va. 734, 104 S. E. 384, this court
We do not think it can be fairly said that this court has ever committed itself to the theory that a view by the jury is in no sense a taking of evidence. It has definitely and repeatedly said that a view is not intended to supply evidence, but only to explain and clarify it. For this reason it has uniformly left the matter of ordering views largely to the discretion of the trial courts, and has distinctly approved their action in refusing a view where the manifest purpose was to take evidence on some matter not already before the jury by the evidence adduced. But, while adhering thus strictly to the rule that the primary purpose of a view is never to take or supply evidence, it has always recognized the further rule that in some cases a view may be of value in explaining or rendering clear and understandable the testimony given by witnesses at a trial. Can it be doubted that the explanation itself, whether resulting from what Professor Wigmore calls a mere autoptic inspection, or from verbal explanation of objects, distances, locations, and the like, constitutes evidence of a most material character? If a witness on the trial should describe a certain location and its surroundings, a plat or drawing thereof would in nearly every instance be very helpful and enlightening as an aid to a clear-understanding of the witness, but such a plat or drawing, however accurately and correctly it might be conceded to conform to the testimony, could not be lawfully considered by the jury in a felony case if introduced in the absence of the accused. Why? Because that would be taking evidence in his absence and would violate the jurisdictional requirement of his presence throughout the trial.
If, however, in the foregoing discussion we have not
Proceeding further in the Lorillard Case, the opinion said: “We do not wish to restrict views to cases where they will aid the jury in applying the testimony adduced on the trial. There are cases where a view will furnish ‘a distinctly additional source of proof, i. e., the thing itself as autoptieally observed.’ In such case the view should be granted as it would be ‘of substantial aid to the jury in reaching a correct verdict.’ Abernathy v. Emporia Mfg. Co., supra.”
This is the latest expression in Virginia, pertinent to the present inquiry, upon the subject of views by
In State v. McCausland, 82 W. Va. 525, 96 S. E. 938, a view was held by the jury during a part of which the accused was absent, and while he was thus absent the jury made certain experiments for the purpose of testing the accuracy of the testimony of one of the witnesses. In the course of a careful opinion by Judge Ritz, the following appears:
“As to whether or not a view by the jury of some place connected with the matter before it is the taking of evidence, is a question upon which there is a very decided conflict of authorities. Many of the courts hold that it is not, but is a part of the deliberations of the jury in arriving at a verdict; others say it is not the taking of evidence, but is simply allowing the jury to see the physical conditions in order that it may better understand the oral testimony; while still others assert that it is the presentation of physical conditions to the jury from which it may be informed as to some pertinent matter of inquiry. • The purpose of introducing evidence is to inform the jury of the transaction in regard to which the trial is had, and anything pertinent to that end is proper for the purpose. Frequently in the trial of such cases material objects are introduced before the jury. In homicide cases the garments worn by the deceased are often introduced for the purpose of showing the place at which the wounds were inflicted. Can it be said that this is not evidence? It is stronger and more convincing to the jury than the oral testimony of any witness could possibly be. There can be no difference in the proffer of objects to the jury in the court-room and such exhibition by taking the jury to view such objects, when they are not susceptible of being brought into court. The reason the jury is taken*617 to view the ground is simply because it is physically impossible to bring it into the courtroom, and it is therefore necessary, in order that the jury may have all the light obtainable upon the subject to which the inquiry is directed, that it be taken and shown these objects which form a part of the subject of inquiry. In this ease can it be doubted that the actual demonstration made upon the ground to show whether or not certain objects are visible from a certain point was the strongest sort of evidence that could be introduced upon that question? Likewise, the view of the jury was the very strongest evidence as to the distance between the scene of the tragedy,and the place where the witness was standing whose testimony was questioned. A dozen witnesses might testify that they observed this tragedy from a certain point, and the jury would not believe a single one of them, if from the observation made upon the ground the physical conditions were such as to preclude the possibility of the truth of the witnesses’ statements. This view is fully sustained by what we consider the better authorities.”
The opinion in the McCausland Case also deals with the question of waiver, and while indicating that there would have been no reason upon the facts of that case to hold that the accused had waived his right to be present, the West Virginia Supreme Court said, just as we must say in this ease: “Under our decisions the right of the accused in a felony case to be present at every stage of the trial is one which he cannot waive, and the decisions cited by the Attorney-General holding that such a right is one that can be waived are not in conformity with our holding.” See also, in support of the proposition that a view is essentially a part of the trial in a felony case, Foster v. State, 70 Miss. 755, 765,. 12 So. 822; People v. Bush, 68 Cal. 623, 10 Pac. 169;
It must be apparent that no matter how carefully thé court may instruct the jury as to their conduct at a view, and no matter how willing they may be to obey instructions, the proceeding in its very nature affords more or less opportunity for inaccuracy and irregularity in the- opinion and impression which the jury will thereby obtain. Whether we regard the proceeding as the taking of evidence or merely as an explanation and illumination of the testimony given or to be given in court, no one can doubt that it is expected and intended to have a material bearing upon the conclusions reached by the jury. Indeed, it is perfectly well settled by our own decisions that the view ought never to be granted unless the court is satisfied that it will be of .material aid to the jury in passing upon the evidence. Nor can we agree with Professor Wigmore and other authorities holding that the view, so far as the question of the presence of the accused is concerned, is like a consideration of the evidence by the jury after they have retired to their room. Nothing can be lawfully considered there unless it has been regularly brought to the attention of the jury in court during the course of the trial and in the presence of the accused. '
. The case of Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812, is relied upon by the Attorney-General, but has no controlling influence upon the question under consideration. In that case, after the conclusion.of the evidence and after the jury had gone to their room to
It has always been held in Virginia that whenever anything is to be done at the trial of a felony case which may affect the interests of the accused his presence is indispensable to his conviction—a jurisdictional requisite which he cannot waive. To hold that a view by the jury is not a part of the trial within the meaning and reason of this rule would be to exclude from its operation a proceeding which we all know is far more material and far more susceptible of abuse in the absence.of the accused than many others of less importance at which his presence has uniformly been regarded as essential. Indeed, the courts in this State had gone so far as to hold that after arraignment a motion for a continuance was within the rule, and that it would be error to pass upon such a motion in his absence. Later cases
We hold that a view of the premises by the jury is a part of the trial of a criminal case. We have not reached this conclusion hastily. The question involved, with more or less circumstantial variety, was presented in three separate eases at the last session of this court, namely, Fetters v. Commonwealth, ante p. 501, 115 S. E. 692; Pierce v. Commonwealth, post p. 635, 115 S. E. 686, and the instant case. It was fully argued and full briefs were filed by the Attorney-General and his associates for the Commonwealth and by learned and able counsel representing the several defendants. The decision we make here is apparently opposed by authority for which we entertain great respect. See, among others, Wigmore on Evidence, supra; State v. Slorah, supra; People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368, and note thereto; Starr v. State, supra; People v. Auerbach, 176 Mich. 23, 141 N. W. 869, Ann. Cas. 1915B, 557 and note. The conflict, however, between these authorities and our conclusion here is more apparent than real. Most of the cases which have held that the prisoner’s presence at a view is not essential could be distinguished in their facts from the instant case, and many of them could be further differentiated by reason of peculiar statutory provisions, and especially by the fact that in many other jurisdictions it has been held that a prisoner may waive
We are of opinion that the absence of the accused, regardless of whether he asked to attend the view or made any objection to the visit of the jury to the premises without Mm, and regardless of any irregular conduct by the jury at the view, rendered the verdict against Mm invalid, and that the court erred in refusing to set the same aside and grant a new trial. The fact that the jury made tests and experiments in the factory, and thereby took further evidence in the case, merely accentuated the error and demonstrated the possible prejudice wMeh may have resulted to the prisoner, thus bringing the case witMn the influence of all the authorities, both those for and those against the theory that a view is not ordinarily such a part of the trial in a felony case as to render the presence of the prisoner essential to a valid conviction. Upon tMs latter point there is practically no conflict of authority.
It is insisted by the Attorney-General that inasmuch as the defendant, Noell, although charged
It may be added in this connection that in the West Virginia ease of State v. McCausland, supra, in which the court held that the presence of the prisoner was essential and could not be waived by him, the indictment charged murder and the verdict found him guilty of involuntary manslaughter which was only a misdemeanor. The court did not accord any effect to this latter fact, but the particular question now under consideration does not seem to have been directly raised or decided.
' It is sometimes said, though it has not been suggested in this case, that a prisoner might refuse to attend a view, and that the court in that event ought not to be
It often happens that the view is had on the motion of the prisoner. In such a case, if he should not be at the view because he had expressly said that he did not' desire to accompany the jury, the question would at once and very naturally present itself as to why he should thereafter be permitted to challenge the proceeding. But exactly the same question would arise if the court should, at Ms request, allow Mm to remain in jail or out on bail wMle the trial was being held. The conclusive answer to both questions is that the law does permit him, even by express consent, to thus abrogate a jurisdictional rule of procedure.
There is an assignment of error based on the alleged insufficiency of the evidence to support the verdict, but as the case must go back for a new trial, we express no opimon upon tMs point.
Another assignment was based .upon the action of the court in overruling a demurrer to the indictment and a motion to quash the same. No reasons were stated in the lower court for such demurrer and motion, and no error in respect to-the action of the trial court
The objections to the instructions are without merit and do not require any discussion, and the remaining contention upon which we are asked to reverse the judgment will not arise upon the next trial.
The judgment complained of will be reversed and the cause remanded for a new trial to be had not in conflict with the views herein expressed.
Reversed.
Concurrence Opinion
(concurring in the result):
I concur in the result in this case because when the jury took the view of the premises they made certain experiments and tests without the knowledge of the accused and in his absence. I do not'concur, however, in the conclusion that upon a mere view of the premises the presence of the accused is essential to the jurisdiction. I think that, while it is a privilege which should never be denied, it may nevertheless be waived. For this there is respectable, if not ample, authority, and the eases so holding are, in my opinion, supported by better reasons than those which hold otherwise.