97

Argument for Petitioner.

N. R. Co., 227 U.S. 88, 93. "Nothing can be treated as evidence, which is not introduced as such." United States v. Abilene & So. Ry. Co., 265 U.S. 274, 288.

The earlier Massachusetts cases before the enactment of the statute permitting a view in criminal cases pointed out the apparent violation of "an important principle, that all the proceedings should be in the presence of the accused." Parker, C.J., in Commonwealth v. Parker, 2 Pick. 550, 551; See Commonwealth v. Knapp, 9 Pick. 496; 3 Wharton, Crim. Law, 9th ed., § 707, quoted in dissenting opinion in Valdez v. United States, 244 U.S. 432, 453.

The practice in numerous important Massachusetts capital cases, as shown by the manuscript records, does not bear out the statement in Commonwealth v. Dascalakis, 246 Mass. 12, 30, that the right of the accused to be present is left to the court.

A view is evidence, under Massachusetts decisions. See: Commonwealth v. Chance, 174 Mass. 245; Commonwealth v. Dascalakis, 246 Mass. 12; Tully v. Fitchburg R. Co., 134 Mass. 499; Hanks v. B. & O. R. Co., 147 Mass. 495; Smith v. Morse, 148 Mass. 407; Commonwealth v. Mercier, 257 Mass. 353; Commonwealth v. Mara, 257 Mass. 198; Wall v. U.S. Mining Co., 232 Fed. 613; Commonwealth v. Handren, 261 Mass. 294. It is the most convincing evidence. Foster v. State, 70 Miss. 755. See 12 Harv.L.Rev. 212.

The proposition that the view is a part of the trial is forcibly supported by authority and reason.

Of the authorities that seem to hold to the contrary, all are cases where the point was raised for the first time after verdict and where the right was expressly or impliedly waived,-with the exception of the two recent instances of Commonwealth v. Belenski, 276 Mass. 36, and Commonwealth v. Snyder, 282 Mass. 401, the case here.

Valdez v. United States, 244 U.S. 432, was a trial before a single justice without jury, so that the fundamental principles connected with jury trial were not directly involved. People v. Thorn, 156 N.Y. 286, proceeded upon the theory of waiver, and the dictum often relied upon in support of the proposition that view is not part of a trial is not followed in the practical administration of the trials in murder cases in New York. See People v. Lytton, 257 N.Y. 310; People v. Weiner, 248 N.Y. 118, both capital cases.

Counsel for petitioner have been unable to discover a single instance in the judicial history of the entire country (other than the recent instances in Commonwealth v. Belenski, supra, and Commonwealth v. Snyder, supra) where the accused in a capital case was denied the right to be present at a view when the request was seasonably made and not waived.

There was a denial of equal protection, because the accused, charged with a capital offense and in custody without bail, had no control over his presence or absence.

Mr. Joseph E. Warner, Attorney General of Massachusetts, with whom Mr. George B. Lourie, Assistant Attorney General, and Mr. Frank G. Volpe were on the brief, for respondent.

MR. JUSTICE CARDOZO delivered the opinion of the Court.

On April 9, 1931, James M. Kiley was shot to death at a gasoline station at Somerville, Massachusetts. Three men, Garrick, Donnellon and the petitioner Snyder, joined in the murder and in the attempted robbery that led to it. Garrick confessed to his part in the crime and became a witness for the state. Donnellon and Snyder were tried together and sentenced to be put to death. The jury found upon abundant evidence that the guilt of each had

been established beyond a reasonable doubt. At the trial and on appeal Snyder made the claim that through the refusal of the trial judge to permit him to be present at a view there had been a denial of due process of law under the Fourteenth Amendment of the Constitution of the United States. The Supreme Judicial Court of Massachusetts affirmed the conviction. 282 Mass. 401; 185 N.E. 376. A writ of certiorari brings the case here.

At the opening of the trial there was a motion by the Commonwealth that the jury be directed to view the scene of the crime. This motion was granted. In granting it the court acted under a Massachusetts statute which provides "The court may order a view by a jury impanelled to try a criminal case." General Laws of Massachusetts, c. 234, § 35. The court appointed counsel for Donnellon and for Snyder to represent their respective clients at the place to be viewed. Counsel for Donnellon moved that he be permitted to go there with his client after the view, but did not ask that his client be present with the jury. The court stated that such an order would probably be made. Counsel for Snyder moved that his client be permitted to view the scene with the jury, invoking the protection of the federal constitution. This motion was denied. The jurors were then placed in charge of bailiffs duly sworn. Accompanied by these bailiffs and also by the judge, the court stenographer, the District Attorney and the counsel for the defendants, they went forth to make their view.

The first stopping place was at the filling station, 13 Somerville Avenue. Entering the station, the District Attorney pointed out to the jurors the particular parts of the building that he wished them to observe. He asked them to note the window at the rear, its position with reference to the entrance, the position of other windows. to the right, the size of the room, the angle made by a partition, and the location of other objects. Counsel for

Opinion of the Court.

291 U.S.

Snyder called attention to the view from within the building looking out, and to the condition of the floor. Leaving the station by the front door, the jury viewed the building from the other side of the street. The District Attorney asked that note be made of the driveway to the right and left of the station, the three pumps in front, and also the width of the street. Counsel for Snyder called attention to the nature of the travel, the setback of the station from the roadway, and in particular the possibility of observing from without what was taking place within. After the visit to the station the jurors were taken a short distance away where they were asked to make note of the lay-out of the streets. They then went back to the station, the District Attorney saying that he had omitted to direct their attention to the lights. The lights were then observed, the dimensions of a fence in front of them, and also, once more, the gasoline pumps. The District Attorney stated that the middle pump was not there at the time of the homicide. Counsel for the petitioner answered that he had no knowledge on the subject but would accept his adversary's statement. Thereupon the judge, who had guided the proceeding, stated the agreement to the jurors assembled on the walk. "It is agreed," he said, "that at the time of the offense, that is, on April 9, 1931, there were but two pumps in front of the gasoline station, the one on the extreme right that is painted green, and the one on the extreme left that is painted black. Those two were there. The one in the middle, with the blue striping on it, was not there."

After the completion of the view, the group returned to the court house and the trial went on. In charging the jury the judge said, "Now what have you before you on which to form your judgment and to render your finding and your verdict? The view, the testimony given by the witnesses and the exhibits comprise the evidence that is before you." The question in this court is whether a

view in the absence of a defendant who has made demand that he be present is a denial of due process under the Fourteenth Amendment.

The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Twining v. New Jersey, 211 U.S. 78, 106, 111, 112; Rogers v. Peck, 199 U.S. 425, 434; Maxwell v. Dow, 176 U.S. 581, 604; Hurtado v. California, 110 U.S. 516; Frank v. Mangum, 237 U.S. 309, 326; Powell v. Alabama, 287 U.S. 45, 67. Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar. Consistently with that amendment, trial by jury may be abolished. Walker v. Sauvinet, 92 U.S. 90; Maxwell v. Dow, supra; N. Y. Central R. Co. v. White, 243 U.S. 188, 208; Wagner Electric Co. v. Lyndon, 262 U.S. 226, 232. Indictments by a grand jury may give way to informations by a public officer. Hurtado v. California, supra; Gaines v. Washington, 277 U.S. 81, 86. The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state. Twining v. New Jersey, supra. What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it. Twining v. New Jersey, supra; Powell v. Alabama, supra, pp. 68, 71; Holmes v. Conway, 241 U.S. 624. Cf. Blackmer v. United States, 284 U.S. 421, 440.

We assume in aid of the petitioner that in a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own. person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend