inference of waiver by the defendant and his counsel. Diaz v. United States, 223 U.S. 442, had to do with the privilege of confrontation, and drew an inference of waiver where the defendant had wilfully absented himself after the trial had been begun. Cf. Sir James Fitzjames Stephen, Digest of the Law of Criminal Procedure, Art. 302; Smellie's Case, 14 Crim. App. Reports 128. Frank v. Mangum, supra, found a waiver of the privilege of presence at the rendition of the verdict. None of these cases was concerned with the procedure at a view. Valdez v. United States, supra, considered a provision of the Philippine Code which confers the privilege of confrontation, and held that consistently therewith the scene of the crime might be viewed by the judge with the consent of the defendant's counsel, though without the knowledge of the client. The court added that "apart from any question of waiver" it would be pressing the privilege of confrontation too far to apply it in such circumstances, and moreover that in the circumstances of the case, the absence of the defendant was plainly immaterial, it "being difficult to divine how the inspection . . . added to or took from the case as presented."

We find it of no moment that the judge in this case described the view as evidence. The Supreme Judicial Court of Massachusetts has said of a view that "its chief purpose is to enable the jury to understand better the testimony which has or may be introduced." Commonwealth v. Dascalakis, supra. Even so, its inevitable effect is that of evidence, no matter what label the judge may choose to give it. Commonwealth v. Handren, supra. Such is the holding of many well considered cases. Wigmore, vol. 2, § 1168, pp. 705 et seq., vol. 3, §§ 1802, 1803, collating the decisions. To say that the defendant may be excluded from the scene if the court tells the jury that

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291 U.S.

the view has no other function than to give them understanding of the evidence, but that there is an impairment of the constitutional privileges of a defendant thus excluded if the court tells the jury that the view is part of the evidence, to make the securities of the constitution depend upon such quiddities is to cheapen and degrade them.

The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.

The constitution and statutes and judicial decisions of the Commonwealth of Massachusetts are the authentic forms through which the sense of justice of the People of that Commonwealth expresses itself in law. We are not to supersede them on the ground that they deny the essentials of a trial because opinions may differ as to their policy or fairness. Not all the precepts of conduct precious to the hearts of many of us are immutable principles of justice, acknowledged semper ubique et ab omnibus (Otis v. Parker, 187 U.S. 606, 609), wherever the good life is a subject of concern. There is danger that the criminal law will be brought into contempt-that discredit will even touch the great immunities assured by the Fourteenth Amendment-if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.

The judgment is

Affirmed.

97

ROBERTS, J., dissenting.

MR. JUSTICE ROBERTS, dissenting.

The petitioner and two others were charged with murder committed in an attempt to rob a gasoline station. The petitioner and one of his co-defendants were tried together; the third testified for the Commonwealth.

There is no dispute that when the three embarked on their evil enterprise all were armed, and it is not denied that they approached the station with intent to commit either larceny or robbery; but the record exhibits grave contradictions as to which of them fired the fatal shot, and as to the petitioner's abandonment of the common plan before the shot was fired. The situation and size of the station, its arrangement, its contents, the location and size of doors and windows, and the position of surrounding objects, were vital factors in corroboration or contradiction of the varying accounts given in the testimony of the three participants.

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

The judge, the official stenographer, the district attorney, and counsel for the defendants, accompanied the jury to the scene. The judge controlled the entire proceeding, and everything that was said or done was taken by the stenographer and made a part of the record of

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291 U.S.

the trial. The pointing out of features of the scene by the district attorney went beyond a mere showing, and what he said closely approached argument.1 During the progress of the view the court formulated and placed of record a stipulation as to changes which had occurred since the shooting. In his charge to the jury the judge said:

'The following are outstanding instances:

"The Court: Now, Mr. Volpe, if you are ready.

"Mr. Volpe. Just first stand here, gentlemen, and take a look inside of the gasoline station. Now step in, please.

"(The following occurred inside the filling station:)

"Mr. Volpe: Now, gentlemen, I call your attention to this glass here (indicating), this window (indicating the back window of the filling station,) about the position of the glass, and I ask you to look at that, and the relative position of the entrance, especially to the right or to the left, coming in through the door. And then this oil tank here on the right of this window; the other two windows on the right of the building, and I want you to take note of the size of the room, and this telephone here, and these two doors, one on each side of the telephone. Take note, also, of the location of this other gas tank over here, back of the door; this desk on the left. Also look out the window at the back, and notice the gravel in the yard, and the fence there."

"Mr. Volpe: I want you to take a view of the other side of the sidewalk from this location, and note the driveway on the right of the gas station, and on the left, and these two pumps, or three pumps, noticing the distance from the pumps on the entrance of the gas station.

66

Now, I would like to have you come over here and take a look at the gas station as it sits back there.

"(The jury were taken across the street to the opposite sidewalk.) "Mr. Volpe: I want you to get a look at the whole layout, the righthand entrance and the lefthand entrance over there, where that car is standing. Take particular notice of the width of this street, and, as you stand here, notice the bridge going towards Union Square, with the right and left driveways."

"What occurred is shown by the notes as follows:

"Mr. Volpe: That middle pump wasn't there at the time.

The Court: It is agreed that the only pumps that were there were the two outside pumps, and that the middle, or blue one, was not there.

97

ROBERTS, J., dissenting.

Now, what have you before you on which to form your judgment and to render your finding and verdict? The view, the testimony given by the witnesses, and the exhibits, comprise the evidence in this case, comprise the evidence that is before you."

13

"As I say, it is for the jury to say, from all the evidence before you, taking into consideration what it is contended outside of the evidence that you have relative to the firing of any shot-the conduct of any of the parties just before and just after, and any appearances or any evidence that you may gather from the appearance of the locality itself, the testimony relative to the result of the shot, the course of it, and what was done. All that is a part of the surrounding evidence and the circumstances that you shall take into consideration. And then, having taken all the surrounding circumstances into consideration, it is for you to say from all the evidence before you, whether or not it was a withdrawal." 3

In Massachusetts what the jury observes in the course of a view is evidence in the cause. In Tully v. Fitchburg R. Co., 134 Mass. 499, 503, it was said:

"In many cases, and perhaps in most, except those for the assessment of damages, a view is allowed for the pur

"Mr. Volpe: Yes, your Honor.

66 The Court: I can state that to them.

"(The jury left the bus and assembled on the sidewalk.)

"The Court: Now, it is agreed 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. It is also suggested that the jurors look at the street lights from that corner down there (indicating), and the situation of those lights and those down the street."

'During the trial, when certain plans were being put in evidence, the judge said: "What they [the jury] saw is to be taken equally with any evidence that is before them."