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ROBERTS, J., dissenting.

291 U.S.

pose of enabling the jury better to understand and apply the evidence which is given in court; but it is not necessarily limited to this; and, in most cases of a view, a jury must of necessity acquire a certain amount of information, which they may properly treat as evidence in the case.”

And in Commonwealth v. Dascalakis, 246 Mass. 12, 29–30; 140 N.E. 470, 478, a prosecution for homicide, the Supreme Judicial Court held:

“The things thus seen by the jurors could not well be banished from their minds. A view often dispenses with the necessity of detailed description by plan or word of mouth. Inevitably that which the jury see on a view will be utilized in reaching a verdict. In that sense that which is disclosed on a view is evidence. It is rightly described as such. Expressions to that effect are in numerous decisions."

In Commonwealth v. Handren, 261 Mass. 294, 297; 158 N.E. 894, 896, the court observed:

“And the knowledge which the jurors thus acquire is evidence in the case."

Of such weight is the knowledge thus obtained that it may tip the scales in favor of the sufficiency of the evidence to sustain a verdict. Thus in Hanks v. Boston & A. R. Co., 147 Mass. 495, 499; 18 N.E. 218, 220, where the question was whether the case ought to have been submitted to the jury or a binding direction given, it was said:

" It is to be observed that the jury may have been materially aided by a view taken by them of the locality.”

Compare Smith v. Morse, 148 Mass. 407, 410; 19 N.E. 393.

It necessarily follows that the court may instruct the jury to take into consideration what they saw. In Commonwealth v. Mara, 257 Mass. 198, 209; 153 N.E. 793, 795, the ruling was:

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“There was no error in the part of the instructions which permitted the jury to consider in deciding this question what they observed on the view."

And in Commonwealth v. Mercier, 257 Mass. 353, 365; 153 N.E. 834, 836, this was said:

“The defendant also excepted to the statement by the trial judge to the jury that what they would see on the view would be competent evidence for them to consider. ... There was no error in the statement of the judge as to the right of the jury to consider as evidence what was seen by them on the view."

In the light of these rulings, which were concretely applied in this case, the question is whether the denial of petitioner's request to be present at the view deprived him of the due process guaranteed by the Fourteenth Amendment. This court has never had occasion to pass upon the precise point; but many pronouncements regarding the requirements of due process seem to leave no doubt as to the proper resolution of the issue.

The concept of due process is not technical. Form is disregarded if substantial rights are preserved. In whatsoever proceeding, whether it affect property or liberty or life, the Fourteenth Amendment commands the observance of that standard of common fairness, the failure to observe which would offend men's sense of the decencies and proprieties of civilized life. It is fundamental that there can be no due process without reasonable notice and a fair hearing. Though the usual and customary forms

" of procedure be disregarded, the hearing may neverthe

Hurtado v. California, 110 U.S. 516, 524, 532; Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 236; Simon v. Craft, 182 U.S. 427, 436; Holmes v. Conway, 241 U.S. 624.

* Hagar v. Reclamation District No. 108, 111 U.S. 701, 708; Hooker v. Los Angeles, 188 U.S. 314, 318; Twining v. New Jersey, 211 U.S. 78, 111.

ROBERTS, J., dissenting.

291 U.S.

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less be fair, if it safeguards the defendant's substantial rights.

The States need not adopt a particular form of accusation, or prescribe any one method of trial,' or adhere to any set mode of selecting the triers of fact. To conform to modern conditions, they may substitute a new form of procedure for one long practised and recognized.' But, whatever the form or method of procedure adopted, they remain always subject to the prohibition against that which is commonly thought essentially unfair to him who is to be afforded a hearing. Tested by this principle the trial of an issue beyond the claim asserted, the participation of a judge affected with a personal interest in the result,11 the forcing of a trial under pressure of mob domination, or the deprivation of the right to present evidence bearing on the issue,13 have been adjudged to deny due process. And this court has recently decided that in the trial of a capital offense due process includes the right of the accused to be represented by counsel.

Our traditions, the Bills of Rights of our federal and state constitutions, state legislation and the decisions of the courts of the nation and the states, unite in testimony that the privilege of the accused to be present throughout

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Hurtado v. California, supra; Caldwell v. Texas, 137 U.S. 692; Bolln v. Nebraska, 176 U.S. 83; Barrington v. Missouri, 205 U.S. 483.

? Walker v. Sauvinet, 92 U.S. 90; Maxwell v. Dow, 176 U.S. 581; Jordan v. Massachusetts, 225 U.S. 167.

Brown v. New Jersey, 175 U.S. 172; Howard v. Kentucky, 200 U.S. 164; Rawlins v. Georgia, 201 U.S. 638.

*Hurtado v. California, supra, 528, 529; Twining v. New Jersey,

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supra, 111.

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10 Windsor v. McVeigh, 93 U.S. 274, 282; Standard Oil Co. v. Missouri, 224 U.S. 270, 281-2.

" Tumey v. Ohio, 273 U.S. 510.
" Moore v. Dempsey, 261 U.S. 86.
Saunders v. Shaw, 244 U.S. 317.
Powell v. Alabama, 287 U.S. 45.

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his trial is of the very essence of due process. The trial as respects the prisoner's right of presence in the constitutional sense, does not include the formal procedure of indictment or preliminary steps antecedent to the hearing on the merits, or stages of the litigation after the rendition of the verdict,15 but does comprehend the inquiry by the ordained trier of fact from beginning to end.16

Speaking generally of the administration of criminal justice throughout the nation, this court has said: 17 "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner; ” and in enforcing the mandate of a territorial statute this language was

used: 18

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“Such being 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.”

To allay the apprehensions of the people lest the federal government invade their liberties, the first ten amendments to the Constitution were adopted. The Sixth assures one accused of crime that if prosecuted under federal law he shall have a public trial, be informed of the nature and cause of the accusation, be confronted with

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Schwab v. Berggren, 143 U.S. 442; Dowdell v. United States, 221 U.S. 325, 331.

"Hopt v. Utah, 110 U.S. 574; Lewis v. United States, 146 U.S. 370; Diaz v. United States, 223 U.S. 442.

Lewis v. United States, supra, p. 372. » Hopt v. Utah, supra, p. 579. 46305-34 -9

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the witnesses against him, ai counsel for his defense. But in state as well as national tri same quality of fairness, is evi of a guarantee of similar im every state in the Union 19 ( O fundamental law of many of 1 guards the right of the accuse in person.” 20 But mere differ not obscured the fact that a intended to secure the same g ing. Accordingly, the courts ! ably held that the Sixth Amer trials, and the analogous decla constitutions touching trials ir accused the privilege of presen This court has so declared. In tion of the Philippine Civil ( tends to the accused in all right to be heard by himself a

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19 In two States (California and reference to the right of the accused him; but the omission is supplied i 187, p. 364, Penal Code, $ 686; Nev § 10654.

Arizona, Const. of 1910, Art. II, Art. I, § 13; Colorado, Const. of 187 1889, Art. I, § 13; Illinois, Const. of of 1859, Bill of Rights, $ 10; Misso Montana, Const. of 1889, Art. III, Art. I, § 11; Nevada, Const. of 1864 of 1911, Art. II, § 14 (as amended); $ 6; North Dakota, Const. of 1889, (as amended Sept. 3, 1912), Art. I 1889, Art. VI, § 7; Utah, Const. oʻ Const. of 1889, Art. I, § 22; Wyom

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