*1 may Other considerations dr where apply not controversy We question is civil. leave that open.

The judgment reversed the cause remanded for proceedings further inconsistent with this opinion.

Reversed. SNYDER v. MASSACHUSETTS. Argued January November 1933. Decided

No. 241. *2 Henry Messrs. Field Webber, with whom P. A. C. Mr. H. Weinstein were brief, on and L. ing petitioner. *5 Warner, General Attorney of Massachu- Joseph E. Mr. Lourie, Assistant George B. Attor- setts, whom Mr. with on Frank General, Volpe brief, G. were Mr. ney for respondent; opinion delivered Cardozo

Mr. Justice Court. M. Kiley was shot to death at 1931, James April 9,

On Somerville, Three Massachusetts. station gasoline joined Snyder, and the Garrick, petitioner Donnellon men, robbery attempted and in that led to it. murder part in the crime and to his became Garrick confessed Snyder Donnellon the state. were tried witness to be put death. The and sentenced together guilt that the evidence each had. abundant upon found *6 trial béyond reasonable the been established doubt. At through made the claim that the appeal Snyder and on at a present the trial to him to judge permit refusal of be process of due of under view there had been law denial the Fourteenth Amendment of the Constitution United States. Judicial Court of Massa- Supreme chusetts affirmed the Mass. N.E. conviction. 185. A of certiorari the case brings writ here. opening by At the the trial there was a motion Commonwealth that be jury directed to view the granted. grant- scene the crime. This motion was ing the court acted under a Massachusetts statute provides order a by jury impan- The court view try elled to a criminal case.” General Laws Massachu- c. 35. The court counsel setts, appointed for Don- § Snyder represent nellon and for to their respective clients to Counsel place be for Donnellon viewed. moved he thére permitted go with his client after the but did not ask that his client be view, present with the an jury. The court stated that such order would probably Snyder Counsel for be made. moved that his client be permitted the scene with the view .jury, invoking the protection of the federal constitution. This motion was then jurors denied. The were placed charge of bailiffs Accompanied duly by sworn. these bailiffs and also stenographer, the court judge, District Attorney and counsel for the defendants, they went forth to their make view. stopping place

The first filling at the was station,’ 13 Entering Avenue. Somerville station, the District out Attorney jurors' pointed the particular parts, wished, building he them to observe. He asked to note the window at rear, them its position with the entrance, the position reference of other windows right, room, the size of the the angle made aby partition, objects. and the location of other Counsel for build- from within the view Snyder attention to the called Leaving floor. of the out, to the condition ing looking the build- viewed door, the front the station At- The District of the from the other side street. ing driveway to of the be made torney asked that note front, pumps the three station, of the and left Snyder called Counsel also the width the street. of the travel, nature of the setback attention to the possibility .the roadway, particular from the station taking place within. observing from without what taken a jurors were short After the visit to the station the to make note they distance where were away asked sta- They then lay-out of went back the streets. the. *7 he had omitted saying tion, Attorney the District that lights. lights The to direct their attention to the were of them, of a fence front observed, the dimensions then .in The pumps. District also, more, gasoline once the and not there at pump middle Attorney stated that the petitioner the time of the homicide. Counsel the subject but knowledge that no on the answered he had statement; adversary’s accept Thereupon his the would the guided proceeding, agree7 had the stated judge, who jurors on It “ agreed,” ment assembled the walk. is “ said, offense, is, April he that at time of the that on but two in front of the 9, 193Í, pumps gasoline there were on the extreme that is station, painted green, the one one on the extreme left painted and black. is in middle, there. one Those two were The with it, on there.” striping blue was not completion view, the group returned to 'After house and the trial went on. In charging the court you Now what judge said, have before you on your judgment and your to form to render finding The view, your testimony given verdict? by the exhibits comprise evidence witnesses the. is this,.court question is whether a you.” before

105 who view absence of a defendant has made demand hé present denial of due under the process a. Fourteenth Amendment.

The Commonwealth of regulate Massachusetts free to procedure its courts accordance with its own conception of in so policy doing and fairness unless some principle justice so rooted the traditions offends of our people conscience be ranked as funda mental. Twining 106, v. New 211 Jersey, 78, 111, U.S. Peck, 112; Rogers Dow, v. 199 425, 434; U.S. Maxwell v. 176 581, U.S. California, Hurtado U.S. Frank Mangum, Alabama, 309, 326; U.S. Powell v. U.S. procedure Its does not run foul of the Fourteenth Amendment may because another method thinking seem to our be fairer or give wiser a surer promise protection to the prisoner at bar.- Con sistently. with that amendment, trial jury may be Sauvinet, abolished. Walker 92 U.S. 90; Maxwell v. Dow, supra; N. Y. White, Central R. Co. v. U.S. Electric 208; Wagner Co. v. Lyndon, 262 226, 232. U.S. by grand Indictments jury may give way to informations by-a California, officer. public Hurtado v. supra; Gaines Washington, 86. The privilege against, may self-incrimination be withdrawn and the accused put gland as a witness upon for the state. Twining v. supra. Jersey, What New not be taken away *8 of an charge adequate the and notice opportunity to be in of it. Twining defense heard v. New Jersey, supra; Alabama, supra, 68, Powell v. pp. 71; Holmes Conway, v. Cf. U.S. 624. v. States, Blackmer United 284 U.S. 440. 421, in aid Of the petitioner

We assume in a prosecu- felony for a the tion defendant has the privilege under Amendment the Fourteenth to be present in his own presence whenever his person has a relation, reasonably substantial, fulness of his opportunity to defend one’s charge. privilege to confront against Thus, is assured them face face and cross-examine accusers in by in prosecutions a Amendment defendant Sixth supra, p. 85), (Gaines Washington, courts the federal very assured courts is prosecutions the state pur For by present often the constitutions of states. by the privilege is reinforced poses we assume though this has not been Fourteenth Amendment, 442, Berggren, 143 U.S. squarely held. Cf. Schwab v. Louisiana, 194 U.S. Diaz v. United 448, 450; v.West States, States, 442, 455; Blackmer United S. U. been distin Utah, U.S. has supra. Hopt Mangum, pp. Frank guished supra, and limited. Again, States, 281 276. 341. v. United Cf. Patton U.S. may made easier the accused permitted defense be jurors summing examination or present be at the if present, give for it will be his counsel, power, up lawyers even to supersede his al suggestion advice or the trial See Lewis v. together and conduct himself. in the States, prosecution federal United circumstances also we make a like as such courts. by created scope privilege sumption as to States, supra. Diaz v. United No federal constitution. may by lost or at privilege consent times doubt be States, supra. misconduct. Diaz v. United Cf. even Digest james Stephen, Fitz Law Crim Sir James Our with concern is its exten Procedure, Art. inal either actual or waiver, imputed. unmodified when sion the presence thus assumed In all cases de- was put the test that forward a satisfies moment fendant bears, It or fairly decisive. be as basic ago relation, reasonably bear, substantial, to his assumed Nowhere the decisions of to defend. this opportunity dictum, still less a ruling, is there court of presence the privilege assures Amendment Fourteenth useless, the benefit but a would presence when *9 shadow. What said, if has not decided, is distinctly to the contrary. Kentucky, Howard v. 164, 175; U.S. States, Valdez v. United 432, 445. Cf. Frank v. U.S. Mangum, supra, and particularly the dissenting opinion p. 346. The underlying gains principle point pre and cision from the everywhere distinction drawn between proceedings at the trial Many and those before .and after. motions before trial are absence, heard defendant’s many and motions after trial or in the prosecution of appeals. Cf. Berggren, Schwab v. supra, Lewis v. States, supra. United thought Confusion of will if result we fail to mark the distinction requirements between respect of presence that have their source the common law, requirements source, their either ex have pressly or implication, the federal constitution. if Confusion will result again privilege presence identified with the privilege confrontation, which is limited stages' the trial when there are witnesses questioned. to be It was to prevent intended the con upon viction of accused depositions parte or ex affi particularly davits, preserve to test the recollection of the accused in the exer witness right cise of the cross-examination.” Dowdell v. States, 221 United 325, U.S. 330. See also Wigmore, Evi 1395, dence, vol. collating the §§ decisions. Nor privilege has the confrontation at time any been with recognized exceptions, as for out dying instance declara .documentary evidence. Dowdell tions States, United Baldwin, Robertson v. supra. Cf. 165 U.S. 275, 282; States, 178 458, 472, Motes v. United 473. The are not even exceptions static, .may but be enlarged from time time there no material departure from the general reason rule. Slavski, Commonwealth v. 245 Mass. N.E. cf. West Louisiana, supra. So far as the Fourteenth Amendment is con cerned, presence of a defendant is a condition of due *10 just fair hearing the extent that a and would be to

process by absence, only. his and to that extent thwarted to relation brought inquiry We are thus to an the the at a view and fun- presence the defendant’s between him the justice damental to Constitution assured United States.' nothing inspection

At bare the outset we consider and more, nothing by any view said one to direct where is The jury the attention of the to one feature or another. Amendment does not assúre a defendant Fourteenth to a time. is noth- privilege present the to be at such There ing nothing he there, do he and. almost he could were advantage only would be to gain. could shred brought right the been make certain that had any right the scene. he felt and had viewed place ..If the could bailiffs at trial this, doubt about he examine they had looked at. The risk that they and learn what greater lie no than the risk attaches to testi- is that would anything. Constitutional law like other mony about to chances.” Blinn take,some contrivances has mortal Nelson, 222 Here chance so remote that is If vanishing point, the bailiffs were it dwindles to the shown,‘the had place they as to to false witness bear jury. to There no known is immutable would be lie protection that secures to a justice defend- principle shadowy argument, risk. The made so against ant have been place might changed and conceivably the material. In that be event fact way that would in a inquiry. out There brought by appropriate be could. court and of inquiry witnesses counsel out could disclose the Description would conditions of court. the defendant his could prove witnesses view, before. He could nothing conditions were do what there had been with jury. he though more Indeed upon request it clear he makes would have record go there afterwards company with allowed his to learn Opportunity ample there whatever counsel. was need know.

If injustice the risk of at its prisoner shadowy greatest, bé even a shadow he when admits ceases jurors that the brought right place were and shown what' it was to see. That hap substance what trial, here.. On the pened photographs diagrams the scene the homicide were evidence put Commonwealth and placed jury. before There was suggestion by no the defendant or his counsel these diagrams photographs truly represent did *11 place that upon had been seen the view. There no was any suggestion change the except one that con W(gs ceded. The took defendant the stand and admitted that gasoline he was at*the station the time of the crime. the He to reduce of his grade tried wrongdoing by testi the fying shot had been fired that his codefendant larceny, Donnellon that not robbery, and the aim conspiracy.* of the In the course of his testimony, he his described own and Donnellon’s with movements the diagram aid of evidence. At end of the the trial the a brief statement he made to the jury, supplementing “ the argument that had been made by his counsel. I “ sorry,” said, am he I had any part in the crime. sorry I I grief am for the have caused. But I did not fire the fatal shot. That is all.” Nowhere is there a any suggestion of doubt as to the place. Like conces implicit the sions are summing up of counsel. His jurors argument reminds they what had upon seen * Massachusetts, law Under homicide is murder in the first “ degree deliberately premeditated committed with when malice afore- ” attempted in the commission or thought or commission of a crime if there punishable, homicide, were no that would with-imprison- Robbery by one dangerous life. armed with a ment for weapon is a punishable, larceny but attempted larceny. crime so Mass. Laws, General and c. §§ building, view, the.dimensions undisputed. place The diagram. also on are shown process of due there denial If true no it be absence of de in the inspection bare the result of a such denial re whether remains fendant, question any statement without permitted, counsel are where sults out features particular evidence, point .of them. jury to observe request and to scene re statements, thus Massachusetts hold courts of “ The essential incidents of view. stricted, proper are No pointed out the counsel. witnesses may be features no comment or discussion.” There can be are heard .... Dascalakis, 12, 29; Mass. N.E. Commonwealth attorneys representing or two both 470, 477; One go view, being on the defendant Commonwealth of each other and them, presence permissible court, merely point out officers of the ’ £ things speak but not otherwise to marks, matters or Ibid. The rule in Massachusetts is that these jury.” though present the defendant is not permissible acts are kept away protest. he is under (ibid.), though See Belenski, 176 N.E. Commonwealth Mass. case at bar. Commonwealth in the followed which was Snyder, supra. whether the are to determine Four We *12 anything prescribes to the contrary. Amendment teenth a every difference between view at which Obviously the by request and a accompanied a view to note is silent one nothing or another is one of and degree, feature more. this jury to a bringing particular place, mere of a The whether a building hole, or a room or wall with a is bullet in a place this is the effect statement which was the ,it. offense, request- and a to. exainine When scene are made explicit, tacit directions the defendant wronged supplement unless the so not words transforms procedure quality injustice will be done if away. is kept Statements to jury the defendant objects pointing specific out the to be noted have been accompaniment traditional view for about two cen if turies, not The longer. Fourteenth Amendment has displaced the procedure ages. Exchange Corn Bank Coler, 218; Ownbey v. 280 U.S. Morgan, pp. 100, 101. 94; Twining Jersey, supra, v. New as 1747 early As there is the record of a precedent that exhibits the in remedy practice action. The then towas “ place charge jury showers,” who were sworn lead them to the The defendant in a view. civil action complained that the plaintiff’s shower had mis “ behaved himself in his jury. comments to the court discharged the rule, being opinion the showers marks, boundaries, show etc., enlighten the view ‘ may say ers, them, places These are which on ” the- trial we shall our adapt evidence to.’ Goodtitle v. Clark, 457. At Barnes, time views were not taken criminal cases without the consent of both parties, the Crown well as defendant, except, it seems, upon indictments for maintaining a Redman, nuisance. Rex v. 1 Kenyon Sayer’s c. Rep. 303; s. Common Handren, 261 Mass. wealth v. 294, 297; 158 N.E. Anonymous, 1815, but Chitty see 422. Cf. Rep. Burr. In 1825, however, 252. a statute applicable England the defect supplied Wales power, defect there formerly IV, had 6 George been. c. 50, s. Thereafter, any case, criminal,” either civil or a view might be ordered in discretion of court. The form of oath appears administered to the showers in the reports. Thus, Regina Whalley, Rep. Crim. Cox you oath administered was this:' “You swear will attend truly this well and point out to them the place'in the offense for which T. prisoner W. stands charged alleged have committed; you shall not speak touching to them the supposed offence whereof the said T. charged, only W. so far so as relates to describ-

112 Queen Martin, L.R., also v. aforesaid.” See ing place Practice, 2, pp. Tidd’s vol. 378; Reserved Cases 1 Crown 2, vol. 1828, Practice, London, Crown Gude’s 797, 798; 1803, Evidence, 3, 1802, vol. Wigmore, §§ 655, 656; cf. pp. country, power in own our cited. So'also and cases has been made certain cases in criminal a view order (see stat nearly in the states enacted all statutes by 1163), Evidence, 2, vol. Wigmore in on § collated utes has been power in which the are instances though there Perry, State N.C. inherent. v. treated'as Knapp, 496, 9 Pick. 515. 997; Commonwealth S.E. very generally conform enacted, when statutes, being made for English provision courts, practice discretion, for or, his judge, of the presence in the ancient form. of showers sworn appointment Evidence, Wigmore, decisions Cf. statutes .the 1163; and 1803, 2, and vol. vol. see 3, §§ § Patchen, Perry, Brooklyn Wend. State . supra, p. 536 at are not explained When the who by scene showers gains nothing for the a counsel defendant parties, where any at a view more than being present gains he explanatory only inspection an there bare without He has privilege circumstances, no such word. cértainly no constitutional speak to the show- privilege, what give suggestions of advice. We do not see ers would, could presence of the prisoner do, as he good nor inter- any answer nor in questions, way neither ask acts, fere with observations conclusions People Bonney, fhey Cal. It jury.” fail anything material, out he. 'the fact point prove the trial and ask upon another view. He' had the here, for privilege same stenographic tran- there of all that was said script Never, and done. any stage there proceeding, has de-. suggestion *14 or fendant his counsel something that there was need of more.

The situation not changed is because to his prejudice showers instance this were the counsel for the par ties. The choice of counsel purpose'has for that its roots vol, in ancient practice. Tidd’s Practice, 2, pp. 797, Wigmore, Evidence, Far 3, vol. 1803: cf. Burr. § from being supplies an assurance harmful, additional that nothing to either helpful will overlooked side be upon the view. True, is that indeed,'it when counsel are the showers, the defendant if may present, he able, is to give suggestion or advice, so at least we assume. may Constitutional depend immunities privileges do not upon these accidents. The Fourteenth does Amendment say that showers are liberty at the absence of defendant Out point things to be viewed if showers are not counsel, but are not at if liberty to do so they be counsel. happen to The least a must defendant do, annul practice if he would upon a view which the Commonwealth has approved by judgment of its courts, is to show that the particular case which .in exposed practice challenge, there a reasonable injustice that has possibility been done. Cf. Rutherford Commonwealth, 78 Ky. 639; Kentucky, Howard v. No can supra. read what one was said this at view the light of the uncontroverted facts trial, established at the have even a passing thought that the presence of Snyder would have an aid to his defense. subject is an approach

There from the viewpoint history clarifies prospect. may assume We knowledge from derived an inspection of the may scene be characterized as evidence. Even if this be ” so, a view not a trial nor any part a trial in the sense in which trial was understood common law. This is seen from two circumstances. In the first place though present view, to be at a judge required is not prac- place, there he will. the second go

he have a of the many years jurors, committee was tice repre- attend at the being six, number view to the usual thp body. See rules down Lord laid sent whole also the Rep. provisions in Burr. Mansfield 252: 23, [1825], George IV, c. Act of §§ uniform in criminal cases: made and civil practice vol. § and the Wigmore, Evidence, compare thought suggest no view We have cases cited. *15 question today. That permissible a a is part of in none the significance, less, There not before us. is is fact,that England, of permissible in the home it was the charged felony has a with principle the .defendant being confronting his accusers and of of privilege that in the where is land at his trial. Certain present it genesis and from which were they had their these maxims trial shores, the known as a proceeding our carried to very from something proceed- different thought of as To transfer a view the a view. consti- ing known as trial forgetful to a is to applicable be privileges tutional history. our of in theory

A 'of constitutional perversion fertile source vague precepts Out of the labels. tyranny is a rule a court frames Fourteenth Amendment wrought it has been under fortn, though in general is pf Forthwith another situations. pressure particular because fitted the rule is is under placed situation faintly, "all, at to the reasons though related words, a A in- defendant brought the rule into existence. at a trial evidence when present must be criminal case to advise with must his opportunity offered, for is Alabama, supra), and cross-examine (Powell his counsel States, supra; Common- Dowdell v. United his accusers. 201 U.S. Slavski, supra. Murphy, Cf. Felts wealth “ ” ” trial be extended evidence words Let the

1.15 little, a will privilege apply stages but at is mechanical or cause which the function counsel formal a a witness is to and at which scene and not message. deliver its up such circumstances solu tion of the in problem.is dictionary not to be found defi or It is not nitions evidence trials. to be found judg ments of the courts that at other times or other cir presence cumstances the of a postulate defendant justice. There can be no sound without an solution an question swer to whether particular conditions exhibited the record the enforced absence of de flagrantly unjust so fendant the Constitution the United in to steps States forbid it. What we are subjecting to revision the action' of a legislature from excluding' defendant a view all or in all times is here for conditions. What revision is the action of the judicial of a department excluding state defendant circumstances, particular set justice and the in justice of that exclusion must be in the light determined Cf. Howard v. Kentucky, supra; record. of the whole Q. Chicago, B. & R. Co. Chicago, 234, 235. has not Discretion been abdicated. the contrary, To *16 record makes it clear' that discretion has been exercised. Much is supposed analogy made a between a view and analogy, but its photograph, whatever superficial force, misleading. partial The photograph to' be admissible should be verified the oath of the photog subject must who rapher, be cross-examination as to It taking. the manner of its is common knowledge that be placed, lights can so camera and shadows so give as a distorted adjusted, picture reality. Nor for to hold that need us conditions there can never arise justice outraged will be there is a view in Enough present absence. defendant’s purposes .that may arisen here. “A they have not statute be invalid yet as applied to one state of facts valid as applied Bondurant, 257 Co. v. Dahnke-Walker another.” Commissioner, 289 U.S. DuPont 282, 289; legislative action of the is true of the If this 688. rule, it is general laying state down a department or judicial action admin true of the plainly more even Cf. dealing only with the instance. Nec officers istrative Cambridge, 277 U.S. We view the facts tow totality. their im-

True, indeed, it that constitutional privileges explicitly so as to no may munities be conferred leave whether to a defendant has inquiry prejudice room for an In through saying their denial.- this we wrought If cases within the rule of minimis. the de- put aside de oppor- fendant in a federal court were to-be denied the against him,” be confronted with the witnesses tunity to im- would not be privilege -’the denial of the overlooked because the evidence procured persua- material thus guilt. way, sive of the defendant’s the same privileges, not be though explicit; obviously even so fundamen- result. A bring tal as to us to same defendant who opportunity an to be heard in has been denied his defense indispensable, however something convincing has lost here, in hand, But the case at parte showing. ex the' exists, explicitly conferred, if it is not nor has the privilege, opportunity an been denied to answer and defendant The Fourteenth Amendment has not said so defend. present every words that he must be many second or hour of If every minute or even the trial. words so áre be taken as it is implied, only inflexible because court, are there they put they and not are because already, advance of the process there decision. Due requires proceedings fair, shall but fair- law an relative, concept. ness is a absolute It is fairness particular reference to conditions or re- particular with “The process due clause does not impose upon sults: *17 for the systems States establish ideal duty justice, every modem improve administration with possible ment provision against every hardship and with may that Ownbey Morgan, supra, p. befall.” v. fair in an may

What is one set of circumstances be act in tyranny yet others. This court not held that even has in upon a trial court of a for a the absence defendant moments in few while formal documents are marked evi dence will vitiate a judgment.* Cf. Commonwealth v. Kelly, 292 Pa. 418; Atl. 246. But do not need to we upon dwell the measure of the privilege at such time in such conditions. may be, it even an not Whatever intimation will be our there is a found decisions that process denial due if the from accused be excluded view, though present at every stage of the proceedings court. It is one thing say the prevailing prac tice permit accompany jury, the' accused if he expresses such a wish. It is thing another to say that practice may changed not without a denial of his under the privileges, Constitution of the States. United light To hold this of the historic concept of a view ,a as something separate from trial in court in the light of the shadowy relation between the defendant’s was said Hopt supra, *What v. Utah, Berggren, Schwab supra, subject presence on the of a dictum, and defendant.was opinion, ante, p. no See this more. 106. We say the same of supra, United States, Lewis with the added observation that.it deals the rule at common with law and not with constitutional ' ' n restraints. decisions in the

There'are state courts that a conviction will stand though ridings even- have been made trial court in the absence appears they of the defendant could by.any possibility State, have resulted to his hurt. Whittaker 1172; 173 Ark. State, Lowman S.W. 80 Fla. Supreme 85 So. 166. The Pennsylvania held in supra, Commonwealth v. Kelly, Court on the burden was the defendant a probability injury. show *18 118 defend, is to ability time and his at such a

presence v. Hurtado away far from the doctrine travel California Jersey. Twining v. New must, of criticism. word at the view have a episode One the three pumps one of by that judge The statement the bounds goes beyond not there at the homicide was on objection No for showers. explanation appropriate he had or though defendant, this made score was The proceeding. of the have had minutes could in all the hint for is no him, did not harm there blunder had pump presence absence evidence that is much the The situation any bearing on verdict. misconduct has been cases where there as same if cause, a for such there upset is not jury. verdict Johnson, 110 N.Y. People harm. was no substantial Co., Contracting People Dunbar 684; 17 N.E. 134, 144; Davis, States v. 109 N.E. United 554; N.Y. 426; 215 more another answer But there is 103 Fed. returning After insufficient. convincing, these are a offered evidence District'Attorney view, from the agreed It is jury, station, and said to the of the diagram at the time there pump that this third assent gave his counsel this, To defendant offense.” re was thus agreement In effect the by acquiescence. time. if then first as made and confirmed newed made it had been hurt because was not The defendant once before. has at view been present must a defendant be

Whether conclusions. varying courts state with considered directed to has been always the Nearly, argument ac- constitutions, generally provision local against him, with the witnesses confronted must be cused present he mandate that specific sometimes of the books informs far as our search Never; so trial. opposition established us, privilege has the

119 of due process an essential condition local practice federal constitution. Some courts have put under the a view is ground part. their decision on the McGinnis, 336; 12 Idaho 85 Pac. 1089; trial. State v. Commonwealth, 226 10 Ky. (2d) Freeman v. 850; S.W. Commonwealth, 600, 619; S.E. 827; Noell v. Va. State, 30 Ark. 350. Others have held 679; Benton v. Thorn, People 286; it is not. 156 N.Y. N.E. 177 N.W. Rogers, 303; Minn. 358; State v. Washington State, Fla. 533; 96 So. State v. *19 Mortensen, 312; 562, 633; 26 73 cf. Utah State v. Pac. 14 Cong don, 463; Hilsinger, R.I. State v. 167 Wash. (2d) trial, us, 9 357. A remind 438; they P. designated held a courthouse or a appointed place to be judge magistrate People statute with presiding. A Thorn, p. anywhere. view bemay v. had Some courts, emphasis on the placing privilege of confronta thought equivalent a view tion, have an examina witness, privilege of a that the may tion attendance Commonwealth, even not be waived. Noell supra; v. State McCausland, v. 82 525; W.Va. 96 938; S.E. Benton v. State, supra; State, Foster 70 12 755; v. Miss. 822; So. Stratton, State v. 103 Kan. 226; 173 Pac. 300. Other have held, plainly courts with the better reason, that physical objects are witnesses, not even though they have quality evidence, and that the defendant is at liberty the privilege them, waive view such a privilege People Thorn, exists. v. supra; Elias v. Terri Ariz. tory, 1; 605; Blythe 9 76 Pac. v. 47 State, Ohio 234; 24 268; State 22 Hartley, N.E. v. 342; 40 Pac. 372; Nev. Buzzell, State 59 v. N.H. 65. Cf. Patton States, v. United supra.* Still others, though conceding the possibility

* relating Cases procedure at a view are to be confused with cáses where the defendant during was absent the examination of .gtiaige judge. witnesses or Examples of such are cases 120

waiver, if due uphold present demand privilege Bush, People 623; 169; made. v. 68 Cal. 10 Pac. People Auerbach, 141 23; 869; N.W. Carroll v. Mich. State, Hilsinger, v. 5 Neb. State Sasse v. 31; supra; v. State, State, 68 Wis. 530; 849; Chance v. Ga. N.W. Palmer, 43 Hun 397. Massa 303; People S.E. v. 428; chusetts takes position is'unnecessary waiver defendant be excluded the discretion judge. Belenski, supra; Commonwealth Common v. Snyder, also State supra. wealth v. So does Minnesota. Rogers, supra. v. where the privilege cases none was make there upheld did the the claim that defendant had Four infringement rights been an of his under the teenth Amendment. are, them,

The decisions in federal courts none controlling. Kentucky, supra, Howard v. sustained judgment against of conviction claim of a denial of -the process due where the court the absence of the defend discharged jUror misconduct, ant had1 and substituted (cid:127) evidence, There however, leading another. to an 227; People Beck, 593; State, 46 Ala. Slocovitch 305 Ill. 656; Duffy Hutchinson, State N.E. 163 La. 111 So. *20 State, Jackson, 420; 456; 189; Mont. State v. 151 88 Md. 135 Atl. 170; Dixon, State Pac. 309; 727; 117 v. State v. 185 N.C. S.E. 293 Chandler, Schasker, State v. 462; 345; 128 Ore. 60 N.D. 235 N.W. statutory express 204; all, most, 274 Pac. 303. there an if requirement trial, presence the requirement constitutional at or of gone has for construction. One court as to little room so clear leave for a presence upon motion require of the defendant far as the so tó (State Hoffman, judg 256), opposition 78 Mo. v. new trial Berggren States, of this court in Schwab v. arid Lewis v. United ments supra. grade where crime of a As to rule the misdemeanor Santos, 954; United States Cas. v. see United States only, v. 27 Fed. Gray State, (2d) Shelton, v. 158 Tenn. S.W. F. (2d) 897; Hopt supra, at p. 6 57 Utah, Cf. .

793. inference of waiver his counsel. defendant and United, States, Diaz had to with the do of and drew an of privilege confrontation, inference waiver where wilfully defendant had himself absented begun. Fitzjames after Cf. Sir James trial-.had Criminal Stephen, Digest of the Law of Art. Procedure, Case, Reports Smellie’s Frank App. Crim. Mangum, supra, found a of privilege waiver presence rendition the verdict. None of these cases procedure was concerned with the at a view. Valdez States, supra, v. United considered a the Phil provision of ippine Code which confers the privilege confrontation, consisténtly held therewith-the scene óf crime might be viewed with the consent of the judge though defendant^ counsel, without' knowledge " the client. added that from apart any ques The'court ” it pressing tion waiver the privilege would of con far apply frontation too it in such circumstances, and moreover that- the circumstances of case, the (cid:127)“ iu ab sence of the defendant was plainly immaterial, it being difficult to divine how inspection . . added or .. presented.” the case as took .from . find

We no m'oment that judge this case described the view as evidence. The Supreme Judicial Court of Massachusetts has said of a view that its chief is to enable the purpose understand better testimony has may be introduced.” Common Dascalakis, supra. Even so, its inevitable wealth effect no matter evidence, may is that of what label the judge give it. Handren, choose to Commonwealth v. supra. holding many is the well considered Such Wig- cases. seg., more,-vol. 2, §1168, .705 et vol. pp. 1802, 1803, §§ defendant, say To collating the decisions. from the scene the court be'excluded tells the jury that *21 give them under- function than to other has no view is an impairment that there evidence, but standing of ex- a thus privileges of of constitutional defendant jury that the view is of part tells the cluded the court of the evidence, make the securities constitution —to cheapen degrade is to quiddities depend such upon them. maintaining seen, sedulous law,

The have we forms of charged with crime whatever a defendant defend. of procedure opportunity are of essence an every inherent Privileges so fundamental as to be acceptable trial that could be concept of fair kept reasonable men will be inviolate and thought of of in- inviolable, crushing may be the pressure however But to the ac- proof. justice, though due criminating cused, concept of fairness to the accuser also. The due a filament. We is narrowed to must be strained till the balance keep are true.. of judicial

The decisions constitution statutes and Massachusetts are the authentic Commonwealth through justice People forms which the sense itself in We are expresses Commonwealth law. not. supersede ground they deny them on the opinions differ as to essentials of a trial because or fairness. their Not all the conduct policy precepts many prin- hearts of of us immutable precious to the are semper ciples justice, acknowledged ubique ab om- et Parker, (Otis nibus wherever 609), subject good life is á of concern. There is danger brought into contempt the criminal law will dis- —that the great even touch immunities credit will assured gossamer Fourteenth. Amendment —if possibilities nullify defendant are to sentence prejudice pro- jurisdiction in competent nounced a court obedience law, guilty set the free. to local judgment Affirmed. *22 Roberts, dissenting. Mr. Justice petitioner The and two were with mur- charged others der an to rob a attempt gasoline station. committed^ and one of petitioner The his co-defendants were tried together; the third testified for the Commonwealth.

There no dispute that when three embarked on enterprise armed, their evil all were and denied they approached the station to commit with intent larceny robbery; grave either but the record exhibits contradictions as to which of them fired shot, the fatal to the abandonment of the petitioner’s as common- plan before the was fired. shot situation and size The station, its arrangement, contents, its the location and windows, size doors and the position sur- rounding objects, were vital factors corroboration of contradiction of varying given accounts in the testi- three mony participants. the jury

After had been empaneled and sworn the dis- attorney trict moved a view of the scene of the mur- request granted. der. The The attorney district then made a short statement jury, telling them' they premises were to view the and that when they re- from turned the view he would make a fuller opening. of a In the colloquy course between counsel and the judge the latter announced that he appoint would the defend- ants’ counsel on go the view as representing their respective clients. Counsel for the petitioner moved that permitted client be his accompany the jury on view, asserting this was the defendant’s under the federal constitution. The motion was denied an exception reserved ruling.

The judge, official stenographer, the district at- torney, and counsel for the defendants, accompanied the jury to scene. judge controlled the entire pro- ceeding, and everything that was said or done was’taken stenographer made part of and. the record of . the scene features of out of pointing trial. The showing, and a mere beyond attorney went district During the argument.1 closely approached what he said placed formulated and the court view progress occurred since which had changes record a stipulation said: judge charge the jury shooting.2 his *23 outstanding following 1The “ are instances: ready. Now, you Volpe, if are Mr. The Court: “ look inside here, and take a gentlemen, Volpe. first stand Mr. Just step in, gasoline please. station. Now of the station:) filling “(The following inside the occurred glass this Now, attention to Volpe: gentlemen, your call I “Mr. the of (indicating window (indicating), the back window here this you look ask station,) glass, and I filling position of the about the relative, entrance, especially to the that, position of the the at and then this oil' right left, coming through the And or to door. the windows on the right two window; tank here the of this the other on size the you the of right building, and want take note of of the I doors, on each side room, telephone here, two one this- and these and gas note, also, location of this other telephone. the Take of the of on Also look' here, door; this desk the left. tank over back the of yard, and back, gravel in the at notice the out the window the and the fence there.” Volpe: side of you

“Mr. I to take- a view the other the want of driveway right of on the location, from and note the sidewalk this pumps, left, pumps, or three gas station, and on the and these two the gas noticing pumps the distance from on entrance station. “ Now, you here and take look at I like to have come over would gas station as it sits back there. (cid:127) sidewalk.) “(The jury opposite taken the street to the were across Volpe: you get layout, I want look whole

“Mr. at there, that righthand over where and the lefthand entrance entrance street, this standing. particular Take notice of the car is width bridge . here, going Square, towards and, you stand Union notice driveways.” with the and left notes, by the as follows: What is shown occurred “ wasn’t, Volpe: pump there the time. Mr. That'middle only pumps were that the that agreed were there The Court: It not there. middle, one, that or blue pumps, the two outside and “ Now, have you what before you on which to form your judgment and to render your finding verdict? view, testimony given by witnesses, and the exhibits, comprise the evidence in case, this comprise the you.” evidence that before I say, it is for the jury

“As to say, from all the evidence you, before into taking consideration it is contended what outside of the evidence you have relative to the firing any shot —the conduct any parties just thé before ,and just after, any appearances or any evidence that you may from the gather appearance locality itself, testimony relative to the result shot, course it, what was done. All part of the sur-' rounding evidence and you shall circumstances then, take into consideration. And having takeii all the” surrounding circumstances into consideration, it is for you say from all the evidence before you,' whether or not it was a withdrawal.”

In Massachusetts what the observes in the course of a view is evidence in the cause. Tully v. Fitchburg *24 Co., 499, 503, 134 R. Mass. it was said: “ cases, In in many perhaps most, except those for damages, assessment of a view is for allowed the pur- “ Yes, your Volpe: Honor. Mr. “ I can state that The Court: to them.

“(The jury sidewalk.) left the bus and assembled on the Now,'"it agreed offense,— is that at “The Court: the time of the is, April 9, 1931, on were pumps but two in that front of the —there station, on right, painted the- one the extreme that green,- is gasoline left, on painted the extreme that is and the one black. Those two middle, in the striping it, The one with the were there. blue on was jurors suggested that the It is also look at lights not there. the street (indicating), corner down there and the from that situation of those' lights those down the street.” trial, During plans when certain being put were in evidence, they jury] judge said: “What saw is to be equally [the taken " ; (cid:127) any evidence before them.” with . 126. apply to understand and better jury

pose enabling neces- it is not court; in but given which is evidence view, jury a of a in most cases and, sarily this; limited information, amount acquire a certain necessity must of in the case.” treat as evidence may properly they 12, Dascalakis, 246 Mass. Commonwealth And homicide, 470, 478, prosecution 29-30; N.E. Court held: Supreme Judicial “ jurors not well be could by thus seen things A with dispenses from minds. view often banished their word necessity description by plan'or of detailed on a will Inevitably jury see view that which mouth. In verdict. that sense reaching be utilized rightly It on view is evidence. which is disclosed nu- are in to that effect Expressions as such. described merous decisions.” 294, 297; Commonwealth Handren,

In 261 Mass. 896, 894, 158 N.E. the court observed: acquire thus knowledge jurors “And the which the evidence the case.” weight

Of such thus obtained knowledge is the evi- sufficiency of the may the scales in favor of the tip Boston & Hanks a verdict. dence to sustain Thus Co., where A. R. 147 Mass. N.E. been ought have whether the case was question given, it or a direction jury binding submitted said: have may the jury It is to observed that locality.” taken them of materially aided a view .N.E Morse, 407, 410; Smith Compare Mass. the court instruct necessarily It follows that Com saw. they what into consideration to take , *25 153 N.E. Mara, monwealth v. 198, 209; 257 Mass. 793 ruling was: 795,

“ There no part error in instructions permitted which to consider this jury in deciding question what on they observed the view.” 365; Mercier,

And v. 353, Commonwealth Mass. 153 N.E. 834, 836, this was said: “ The excepted defendant also to the statement judge trial to the that what jury they would see on con- view be competent would evidence them to . sider. . . There was no error in the statement judge evidence consider as was seen them on the what view.” light In the rulings, ap- these which were concretely case, question in this is whether plied the denial request presept to be at the him petitioner’s deprived view the due process guaranteed by the Fourteenth Amend- never had upon ment. court has occasion to pass This many point; pronouncements but precise regarding of due process requirements seem leave no doubt as resolution of issue. proper concept process of due is not technical. Form is disregarded substantial are rights preserved.4 what- proceeding, soever whether it affect or property liberty life, the Fourteenth Amendment commands the observ- ance of that standard of common fairness, the failure to observe would men’s sense offend of the decencies proprieties of civilized life. It is fundamental there can be no process due without reasonable notice and hearing.5 fair Though the usual and customary forms of procedure disregarded, the hearing may neverthe- California, 516, 524, Hurtado v. 532; U.S. Louisville & R.N. Co. Schmidt, Simon Craft, 427, 436; 182 U.S. Holmes 241 U.S. 624. Conway, 5 Hagar v. Reclamation 111 U.S. District No. Hooker Los Angeles, 314, 318; Twining 188 U.S. v. New Jersey, 211 U.S. 78, 111.

128 substantial fair, safeguards the defendant’s if it less be rights. (cid:127) form of accusa- adopt particular The States need not ****7 trial,* of or to method adhere tion,6 any or one prescribe fact,8 of To selecting-the of triers any set mode conform^ of they may substitute a new form conditions, modern to recognized.9 But, long practised for one procedure adopted, procedure they the form or method whatever against subject prohibition always remain him thought essentially unfair to commonly who this, hearing. principle Tested is to be afforded beyond asserted,10 the-partici trial of. an issue claim awith interest in the personal a' affected pation judge result,11 forcing pressure trial under mob domination,12 or deprivation right present issue,13 adjudged have bearing on evidence court'has recently this decided deny, And process. due trial, capital process of a offense due includes represented the accused be counsel.14 traditions, Rights the Bills of of our federal and Our legislation state and the constitutions, decisions of state states, and the in testimony of the nation unite the courts present throughout of the accused privilege 6 692; Texas, Hurtado v. Caldwell v. 137 U.S. California, supra; 83; Missouri, 205 Barrington v. Nebraska, 176 U.S. U.S. 483. v. Bolln 7 90; 581; Dow, 92 U.S. 176 U.S. Sauvinet, v. v. Maxwell Walker . Massachusetts, 225 167 v. U.S. Jordan 8 175 200 Jersey, Kentucky, U.S. Howard Brown v. New v. Georgia, 201 638. v. U.S. Rawlins U.S. 529; Twining supra, v. New Jersey, 9 Hurtado v. California, . supra, 11 1 10 274, 282; McVeigh, 93 Co. v. Mis v. Standard Oil Windsor 270, 281-2. souri, 224 U.S. 11 510. 273 U.S. Ohio, Tumey U.S. 86. Dempsey, Moore . 317 244 U.S. Shaw, Saunders 287 U.S. Alabama, Powell his trial is of very essence of process. due The trial as respects the prisoner’s right presence in the consti- tutional sense, does not include formal procedure indictment preliminary steps antecedent to the hearing *27 on the merits, stages of the litigation'after the rendition/ of verdict,15 comprehend does inquiry by the but of ordained trier fact from beginning to end.16 Speaking generally of the of administration criminal justice throughout nation, “A this court has said:17 leading principle pervades that of entire law criminal procedure that, after indictment found, nothing shall ” done of be absence and in prisoner; enforcing of the mandate a territorial statute this language.was used:18 “ Such being the relation which the citizen holds to the object of public, punishment and the public for wrongs, has legislature deemed essential to the protection of liberty whose life or one involved in prosecution for he shall felony, personally that be present at the trial, every stage at of is, that the trial when his substantial be rights may affected the proceedings against him. If of deprived he his life or liberty be without so being would present, deprivation such be without proc- that due required by of law ess Constitution.” of allay To the apprehensions people lest the fed- government eral invade their liberties, the first ten amend- adopted. to the Constitution were' ments Sixth prosecuted accused of crime assures under .one he have public trial, law shall be federal informed of -the accusation, and cause the' nature of confronted with ” 15 Berggren, 143 U.S. Schwab v. Dowdell v. United States, 221 1 . 33 Lewis 110 U.S. Hopt Utah, 146 U.S. States, United States, 370; Diaz U.S. 442. United States, supra, p. Lewis v. United 372. 18Hopt Utah, supra, p. him, and have the of against the witnesses assistance trials, But the-purpose defense. that all counsel his tribunals, should not lack the in state as as national well is evidenced the embodiment quality fairness, same import in the of similar constitution guarantee of caution the in the Union.19 Out of excess every state States safe- specifically law of of the many fundamental appear and defend accused, guards right phraseology have person.” But mere differences these instruments were obscured the fact all fair hear- privilege great the same intended secure —a uniformly have and invari- Accordingly, courts ing. the. ably respects federal Amendment, held Sixth the state analogous declarations trials, and the courts, touching- trials state secure constitutions every stage trial. privilege presence his accused commenting upon the sec- so declared. This court has *28 Act which ex- Civil Government Philippine tion of “ prosecutions in all criminal the accused tends to counsel,” himself and this was said': be heard right in the provision or similar found con- "An identical equiv.- its States, and substantial of the several stitutions (California Nevada) omit the constitutions 19 In two States against right the witness of the accused to confront reference 1911, supplied -is statute: Cal. Ch. omission him; Stats. but 1929, Compiled Laws, 5, Code, 686; Vol. 364, Nevada 187, p. Penal § 10654. § Const, 24; California, 1879, 1910, II, Const. of 20 Arizona, Art. of § Const, Const, II, Idaho, Colorado, 1876, 16; of Art. I, 13; of § Art. § 2, Kansas, 1870, 9; 13; Art. Const. Illinois, of I, Const. 1889, § Art. § 1875, 22; Missouri, II, Art. Rights, Const. of 10; 1859, § of Bill of § Nebraska, 1875, 16; Const. of 1889, III, § of Art. Montana, Const. Mexico, I, 8; 1864, New Const. of Art. Nevada, 11; Const. I, § Art. § 1894, I, York, of (as amended); Const. Art. II, New 1911, Art. of § Const, 13; Ohio, 1851, of Dakota, I, 1889, Art. 6; Const. of § North § I, 10; Dakota, Const. of 3, 1912), Sept. Art. South (as amended § 1895, I, 12; Washington, 7; Utah, Art. VI, Const. of 1889, § Art. § I, 1889, Art. of 10. I, 22; Wyoming, Const. 1889, § Art. of § Const. Con,.„i- alent is in the embodiéd Sixth Amendment felony tution the United States. ... eases our courts, regarded with substantial accord, have [the right granted] extending stage so as to every trial, of the empaneling inclusive of the of the and the reception as verdict, scarcely of the being less important right than accused of trial itself.” And, if to make doubly sure, assurance legisla- many adopted tures the States have re- statutes dundant to the constitutional mandate explicitly declaring right of the accused to be present his trial.22 light

In the acceptance universal funda- this mental rule of fairness prisoner may present be throughout trial, his it is not matter of but assumption certainty Fourteenth guarantees Amendment the observance of the rule.

It has urged prisoner’s privilege pres- ence is for no other purpose safeguard than to his oppor- tunity cross-examine the adverse But the witnesses: privilege goes deeper than the mere opportunity to cross- examine, and present his secures at every stage the trial. cases cited in margin,23 while by no States, supra, Diaz United p. 454. (Dart 1932), 22 La. Code Crim. Proc. Art. Ann. Laws of 6; Mass., 278, Comp. Vol. 9, Michigan, Ch. Laws 3, 1929, Vol. § 287, 17129; Revised Codes of Montana, 1921, 4, Ch. Vol. II, § Part 11611; Laws, 1, Comp. 1929, 5, Ch. Nevada 10921; Vol. 10654, § § § 8, Pro., Cahill, Crim. par. 2; New York Code of Comp. No. Dak. § 10393; Laws, 2, 1913, Vol. Code of Laws of South § Carolina, 2496; Virginia Vermont General Laws Code of § § Washington 1086-324; Code, Pierce's Wisconsin Statutes § § *29 357.07; Wyoming Statutes, Revised 33-903. § § State, 23 Slocovitch v. 227; 46 Ala. State, 173 Ark. v. Whittaker State, 1172; Lowman v. 397; 18; 166; 294 S.W. 80 Fla. 85 So. Chance State, 428; 303; People Beck, v. 156 Ga. S.E. 593; 119 v. 305 137 Ill. State, 454; 69; Batchelor v. 773; N.E. 189 Ind. State v. 125 N.E. Commonwealth, 430; Riddle Reidel, Ky. 220; 26 Iowa v. 216 287 Hutchinson, 704; Duffy State 146; 656; S.W. v. 163 111 La. So. v. 132 exhausting authorities, sufficiently

means illustrate is amply proposition and funda- sustain jeopardy him that he mental who stands and assures see, hear all before may person, placed and know that him by finding deprive having power the tribunal its n unnecessary be tedious and liberty or life. It would of. quote language privilege. used vindication subject. The are full of discussions of the books cross-examine his witnesses. The cannot own accused reason, ex- suggested that, may for this he be Will it be their they give from the court room while evidence? cluded or physical cross-examine documents exhibits. He cannot photographs, clothing documents, plans, maps, But by alleged' of the perpetrator and worn the victim objects weapon used, may other material crime, the mouth, carry conviction potent more than word mind; and, physical so of the jury’s appearance apparent why, crime. No reason is the scene he view, from may be excluded accused from the court room while docu- such excluded also be proffered to and ex- physical evidence mentary opportunity for cross-examina- jury. amined only many one reasons for the witnesses tion of throughout no presence trial. State defendant’s Massachusetts, in no in the Commonwealth save 189; Cody, 456; Atl. Commonwealth v. 165 135 Md. Mass. 151 State, 575; Dingman, ; 82; v. 177 283 225 133; State Minn. N.W. 42 N.E. 755; 822; State, 12 So. Hoffman, 70 Miss. State v. 78 Mo. Foster v. 420; 309; Jackson, 293 88 Mont. Pac. Miller 256; v. State, v. State 451; 715; 45 N.W. State v. N.J.L. 137 ; Duvel, 437 103 Atl. Neb. 29 91; Perkins, Dixon, 727; 1 Wend. State v. 185 N.C. 718; People v. 462; Schasker, 345; N.D. 235 170; v. 60 N.W. State v. Cole 117 S.E. Rep. 50; 347; Chandler, Cr. 248 Pac. State v. 128 Okla. State, 35 303; Gray State, 370; 158 Tenn. (2d) 13 S.W. 204; Pac. 274 Ore. State, Rep. 500; (2d) 40 147; 118 Tex. Cr. S.W. 793; Schafer 505; 542; Mannion, Utah 57 Pac. Palmer v. Common State 398; 592; Shutzler, 365; State v. S.E. wealth, Va. Wash. . Howerton, S.E. 65 100 W.Va. State 144 Pac. 5 *30 cases save in those recently decided, there privilege has the or the fundamental right nature the preserves questioned or denied. show,24 As the cases right presence exists at every step trial, whether it be during the giving oral testimony, the submission of a document, presentation of physical exhibits, argu- ment of counsel, charge of the court, the rendition of the verdict.

It cannot successfully be contended that the Sixth Amendment has no application courts, trials in state Fourteenth does not embody draw to itself and provisions (Patterson state constitutions v. Colo rado, 205 454), U.S. process fhe due by secured the Four-: teenth Amendment does not embrace a right secured those Alabama, instruments. supra, Powell v. ar gument the conclusion would-be difficult that to counsel specifically preserved by Sixth Amendment was also within the intendment of the due process clause of the Fourteenth, answered was thus: “ In . . Chicago, . Burlington Quincy & R. Co. v. Chi cago, 166 U.S. 226, 241, this court held that a judgment of a court, though state even statute, by authorized private property taken public use without just compensation, was in violation due process required by. law Fourteenth notwith Amendment, standing Fifth explicitly Amendment declares private shall not be property taken for public use just compensation: holding without This was followed Baker, 269, 172 U.S. 277; Smyth Ames, Norwood 466, 524; Diego 169 U.S. and San Land Co. v. National . City, 739, 174 U.S. 754 “ Likewise, this court has considered that freedom of are

speech press rights protected by the due clause the Fourteenth process Amendment,' although Amendment, in the First Congress prohibited in spe- the cases cited in notes 16 and See 23. York, abridging right. from Gitlow New terms cific Stromberg California, 283 U.S. Minnesota, 283 U.S. Near v. *31 construction, is an to in “. . The rule aid and some . may conclusive; must-yield but it more to instances be. whenever such considerations compelling considerations involved is of such a char- right exist. The fact that the violating those acter ‘ it cannot be denied without liberty justice and which lie principles fundamental of ’ of our institutions political the base all civil Louisiana, obviously 272 one (Hebert 312, 316), is v. of in compelling prevail which must those considerations whether it within the determining process is embraced due although Amendment, spe- of the Fourteenth it be clause cifically part dealt with another of the Federal Consti- (pp. 66, 67.) tution.”

If, then, alleged a of the where crime premises view is process is a of the of part to have been committed sub- fact, judgment mission the which upon of data to triers founded; knowledge thereby to if the is gained be oral testimony its with and written play part evidence balance the state and the striking prisoner, the between this) trial. it is a of the If the part true Constitution all presence. secures the accused’s conclusion the this courts, Massachusetts, agree. save those of Such differ- ence of view as authorities exhibit as to prisoner’s á present at right disagreement to be view arises out trial, question on whether view is a part of the taking it"ís, effect, the The great whether evidence. weight authority trial, is that forms part for that reason a who so defendant desires is entitled to Many present.25 be hold he decisions waive the 25 State, People Ark. 328; Bush, 623; v. 30 Benton Cal. 10 v. 68 781; Washington State, Pac. 169; 533; Pac. Cal. 12 71 86 Fla. State, 428; 605; 303; 98 Ga. So. Chance v. 156 19 S.E. State Mc Pac, Commonwealth, 1089; Ginnis, 12 Idaho Freeman an none privilege;26 examination the cases discloses but his (with exception) where a denial of single possible on the request accompany jury view has error. that a held reversible And stateménts view or that it is not part taking not a the trial evi- on dence, denying, ground, right the defendant’s invariably are found in present, cases where requested defendant the view and did not ask accom- jury, either or pany expressly waived conduct right his so statements are dicta, to do. Such since right he Moreover, accused waived whatever had. sev- opinions deny eral of it is said that ought always to be prisoner accompany allowed requests.27 he so Ky. 850; (2d) 827; Bertin, State S.W. La. Ann. *32 Auerbach, People 45; (semble); 176 Mich. 141 23, v. N.W. 869 Bailey State, 428; 594; State, Carroll v. 147 Miss. 112 So. v. 5 Neb. State, App. 104; State, Colletti Watson 31; v. 12 Oh. 166 v. Tenn. Mortensen, (2d) 476; State v. 400; 312; 61 562, SW. Utah 26 73 Pac. Commonwealth, Noell 633; v. 135 600; 679; Va. 115 S.E. State v. Hilsinger, 427; (2d) Wash. 9 357; 167 McCausland, State v. P. 82 525; 96 S.E. 938. W.Va. 26 Whitley State, People Searle, 243; v. 114 Ark. 169 952; S.W. v. Haynes App. 228; 33 State, 819; Cal. 164 Pac. v. 585; 71 Fla. 72 So. Stratton, 180; State v. 226; 103 Kan. Hartley, 300; 173 State v. Pac. 342; State, Colletti 372; 22 Nev. 40 Pac. App. v. 12 104; Oh. Starr State, Rep. v. 5 Okla. 440; 356; Cr. 115 Pac. Congdon, State v. 14 State, 458; Wyo. 34; Jenkins v. R.I. 22 134 Pac. 135 id. 749 27 Territory, Elias v. 1; 605; State, Ariz. 76 Shular v. Pac. 289; 870; State, Barber v. 4 N.E. but see 146; Ind. 199 Ind. 155 N.E. Rogers, State v. 819; 303; 358; People 145 Minn. Thorn, N.W. v. 286; 947; Sing, State 156 N.Y. 50 N.E. ;274 Ore. Commonwealth 921; Van Horn, Pac. 143; 469; 188 Pa. 41 Atl. Collins, State 118 S.E. 423. The last mentioned S.C. case, apparently against-the while a decision right, contains but a subject the mere statement on without reference to the at occurrences trial, probably upon the and is based a waiver. It authority cites as Suber, State 89 S.C. 71 S.E. which is a clear case If this not the apparently waiver. is so case stands alone.

Í36 disagreement

It is to the nature is true there as hand, On assertion function of view. the one the is jury merely with the scene purpose acquaint its is to testimony, to and thus them better understand enable hence forms no the trial and is the tak- part not suggestion ing other, On evidence. see, carry they are bound mind what and .form

jury knowledge obtained, their and so judgment from the so taking the view amounts to of evidence.28 dis- The how- practical purposes; tinction seems too fine for but ever abstract may be, question discussion of .this in a where unimportant present case the view was like held to be were so evidence, jury expressly and the instructed.

The respondent whatever have been urges that petitioner’s right, the record demonstrates he could by have no harm reason his suffered absence. light argument convincing far from in the cir- of the and the rule annotmced court re- by-the cumstances spects liberty the use the were make knowledge by But if gained premises. their view the it were clear that the knowl- verdict not affected edge gained on the view or that result have would had appellant present, been the same still right ought constitutional condoned. denial his ought inquiry this court convert the Nor from one as the denial of the into oné as the prejudice pivot To on ques- suffered denial. affirmance accused, beg tion of the amount harm done the is to *33 very question constitutional involved. The substance hypothesis to be it is present. By the defendant’s 28 following: Compare cases cited in note 25 the Jenkins with 749; 34; 134 135 22 State, Wyo. 22 Pac. State Hartley, id. 372; 286; 947; 342; Thorn, People Pac. 156 N.Y. 50 N.E. Nev. 356; Doon, Rep. Cr. State v. Lee State, 5 Okla. Pac. Starr 34 Pac. Wash. (cid:127) recently him. this has exclude As court said unfair to disregard the respect Sixth with mandate of the jury:29 Amendment trial respecting question But the constitutional set- cannot thus be process of simple ascertaining the that the tled infrac- is unimportant compared tion assailed when with similar might but more serious infractions be con- province is not our extent ceived. ... It measure the to which the Constitution has been and' contravened violation, if in not, the it is ignore opinion, relatively, our. might as bad as it have been.”

A always meaning distinction-has observed process affecting rights, due as property applying In the former procedure aspect courts. inflicted, requirement if satisfied no actual injury is substantial citizen rights are infringed; hot rather than the of reaching result means important consideration. where But the conduct of a involved, trial is guarantee the Fourteenth Amend- just ment is not that a result shall obtained, have been result, but it be, whatever shall be in a reached way. fair Procedural due has process man- do with the ner of trial; dictates that judicial conduct of inquiry certain fundamental rules observed; fairness be disregard of rules, satisfied, forbids the those and is .not though just, hearing result is was unfair. In this the view case, was a part of the trial. The jury sent, were not scene the custody of bailiffs who had no knowledge of place or the circumstances They were crime. instructed view the premises as to so- better understand the testimony. They went forth the judge with presiding, the stenographer officiat- ing, the District Attorney and the counsel of the defend- ants. As has been shown, more than a mere view of the States, Patton v. United 281 U.S. *34 Matters premises had. were called to the jury’s was they attention in detail so that could judgments form distance; all objects, relative alinements position, bearing upon truthfulness having crucial they they told testimony subsequently given, were their own estimates of matters cor- might take these Little of the other roboration or contradiction evidence. wonder, right that the court felt it circumstances, these accompany counsel to appoint the defendants’ pro- If prisoners were entitled to this on the view. they themselves token were entitled tection, by same present. to.be ' deprived a consti- petitioner I think that judgment be reversed. and that the should tutional Mr. Brandeis, Justice Sutherland Justice Mr. opinion. concur this Mr. Justice Butler & IMPROVEMENT, BOOM SLIDE RIVER PIGEON COX, LTD. W. CO. CHARLES January 15, 6, 7, 1934. 1933. Decided Argued December No.