ROBERTS, J., dissenting.

291 U.S.

cific terms from abridging the right. Gitlow v. New York, 268 U.S. 652, 666; Stromberg v. California, 283 U.S. 359, 368; Near v. Minnesota, 283 U.S. 697, 707.

'. . . The rule is an aid to construction, and in some instances may be conclusive; but it must yield to more compelling considerations whenever such considerations exist. The fact that the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions (Hebert v. Louisiana, 272 U.S. 312, 316), is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the Federal Constitution." (pp. 66, 67.)

If, then, a view of the premises where crime is alleged to have been committed is a part of the process of submission of data to the triers of fact, upon which judgment is to be founded; if the knowledge thereby gained is to play its part with oral testimony and written evidence in striking the balance between the state and the prisoner, it is a part of the trial. If this is true the Constitution secures the accused's presence. In this conclusion all the courts, save those of Massachusetts, agree. Such difference of view as the authorities exhibit as to the prisoner's right to be present at a view arises out of a disagreement on the question whether the view is a part of the trial, whether it is, in effect, the taking of evidence. The great weight of authority is that it forms a part of the trial, and for that reason a defendant who so desires is entitled to be present. Many decisions hold that he may waive the

25

25

Benton v. State, 30 Ark. 328; People v. Bush, 68 Cal. 623; 10 Pac. 169; 71 Cal. 602, 12 Pac. 781; Washington v. State, 86 Fla. 533; 98 So. 605; Chance v. State, 156 Ga. 428; 19 S.E. 303; State v. McGinnis, 12 Idaho 336; 85 Pac. 1089; Freeman v. Commonwealth,

97

26

ROBERTS, J., dissenting.

privilege; but an examination of the cases discloses none (with a single possible exception) where a denial of his request to accompany the jury on the view has not been held reversible error. And the statements that a view is not a part of the trial or that it is not the taking of evidence, and denying, on that ground, the defendant's right to be present, are invariably found in cases where the defendant requested the view and did not ask to accompany the jury, or waived either expressly or by conduct his right so to do. Such statements are dicta, since the accused waived whatever right he had. Moreover, in several of the opinions which deny the right it is said that the prisoner ought always to be allowed to accompany the jury if he so requests.27

226 Ky. 850; 10 S.W. (2d) 827; State v. Bertin, 24 La. Ann. 46; People v. Auerbach, 176 Mich. 23, 45; 141 N.W. 869 (semble); Bailey v. State, 147 Miss. 428; 112 So. 594; Carroll v. State, 5 Neb. 31; Colletti v. State, 12 Oh. App. 104; Watson v. State, 166 Tenn. 400; 61 SW. (2d) 476; State v. Mortensen, 26 Utah 312; 73 Pac, 562, 633; Noell v. Commonwealth, 135 Va. 600; 115 S.E. 679; State v. Hilsinger, 167 Wash. 427; 9 P. (2d) 357; State v. McCausland, 82 W.Va. 525; 96 S.E. 938.

26

Whitley v. State, 114 Ark. 243; 169 S.W. 952; People v. Searle, 33 Cal. App. 228; 164 Pac. 819; Haynes v. State, 71 Fla. 585; 72 So. 180; State v. Stratton, 103 Kan. 226; 173 Pac. 300; State v. Hartley, 22 Nev. 342; 40 Pac. 372; Colletti v. State, 12 Oh. App. 104; Starr v. State, 5 Okla. Cr. Rep. 440; 115 Pac. 356; State v. Congdon, 14 R.I. 458; Jenkins v. State, 22 Wyo. 34; 134 Pac. 260, 135 id. 749

Elias v. Territory, 9 Ariz. 1; 76 Pac. 605; Shular v. State, 105 Ind. 289; 4 N.E. 870; but see Barber v. State, 199 Ind. 146; 155 N.E. 819; State v. Rogers, 145 Minn. 303; 177 N.W. 358; People v. Thorn, 156 N.Y. 286; 50 N.E. 947; State v. Sing, 114 Ore. 267, 274; 229 Pac. 921; Commonwealth v. Van Horn, 188 Pa. 143; 41 Atl. 469; State v. Collins, 125 S.C. 267; 118 S.E. 423. The last mentioned case, while apparently a decision against the right, contains but a mere statement on the subject without reference to the occurrences at the trial, and is probably based upon a waiver. It cites as authority State v. Suber, 89 S.C. 100; 71 S.E. 466, which is a clear case of waiver. If this is not so the case apparently stands alone.

ROBERTS, J., dissenting.

291 U.S.

It is true there is disagreement as to the nature and function of a view. On the one hand, the assertion is that its purpose is merely to acquaint the jury with the scene and thus enable them better to understand the testimony, and hence it forms no part of the trial and is not the taking of evidence. On the other, the suggestion is that the jury are bound to carry in mind what they see, and form their judgment from the knowledge so obtained, and so the view amounts to the taking of evidence.28 The distinction seems too fine for practical purposes; but however that may be, discussion of this abstract question is unimportant in a case like the present where the view was held to be evidence, and the jury were expressly so instructed.

The respondent urges that whatever may have been the petitioner's right, the record demonstrates he could have suffered no harm by reason of his absence. The argument is far from convincing in the light of the circumstances and the rule announced by the court as respects the use the jury were at liberty to make of the knowledge gained by their view of the premises. But if it were clear that the verdict was not affected by knowledge gained on the view or that the result would have been the same had the appellant been present, still the denial of his constitutional right ought not be condoned. Nor ought this court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused, is to beg the constitutional question involved. The very substance of the defendant's right is to be present. By hypothesis it is

28

Compare with cases cited in note 25 the following: Jenkins v. State, 22 Wyo. 34; 134 Pac. 260, 135 id. 749; State v. Hartley, 22 Nev. 342; 40 Pac. 372; People v. Thorn, 156 N.Y. 286; 50 N.E. 947; Starr v. State, 5 Okla. Cr. Rep. 440; 115 Pac. 356; State v. Lee Doon, 7 Wash. 308; 34 Pac. 1103.

97

ROBERTS, J., dissenting.

unfair to exclude him. As this court has recently said with respect to disregard of the mandate of the Sixth Amendment respecting trial by jury:

29

"But the constitutional question cannot thus be settled by the simple process of ascertaining that the infraction assailed is unimportant when compared with similar but more serious infractions which might be conceived. . . . It is not our province to measure the extent to which the Constitution has been contravened and ignore the violation, if in our opinion, it is not, relatively, as bad as it might have been."

A distinction has always been observed in the meaning of due process as affecting property rights, and as applying to procedure in the courts. In the former aspect the requirement is satisfied if no actual injury is inflicted and the substantial rights of the citizen are not infringed; the result rather than the means of reaching it is the important consideration. But where the conduct of a trial is involved, the guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way. Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair.

In this case, the view was a part of the trial. The jury were not sent to the scene in the custody of bailiffs who had no knowledge of the place or the circumstances of the crime. They were not instructed to view the premises so as to better understand the testimony. They went forth with the judge presiding, the stenographer officiating, the District Attorney and the counsel of the defendants. As has been shown, more than a mere view of the

"Patton v. United States, 281 U.S. 276, 292.

premises was had. Matters were called to the jury's attention in detail so that they could form judgments of distance, relative position, the alinements of objects, all having a crucial bearing upon the truthfulness of the testimony subsequently given, and they were told they might take their own estimates of these matters in corroboration or contradiction of the other evidence. Little wonder, in these circumstances, that the court felt it right to appoint the defendants' counsel to accompany the jury on the view. If the prisoners were entitled to this protection, by the same token they were entitled themselves to be present.

I think that the petitioner was deprived of a constitutional right and that the judgment should be reversed.

MR. JUSTICE BRANDEIS, MR. JUSTICE SUTHERLAND and MR. JUSTICE BUTLER concur in this opinion.

PIGEON RIVER IMPROVEMENT, SLIDE & BOOM CO. v. CHARLES W. COX, LTD.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 126. Argued December 6, 7, 1933. Decided January 15, 1934. 1. The Webster-Ashburton Treaty of 1842 declares that "all water communications and all the usual portages along "the international boundary line, as established by the Treaty "from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the citizens and subjects of both countries." Pigeon River is one of the waters traversed by the line, and Grand Portage was one of several portages circuiting impassable falls and rapids in that river which were used in aid of transportation by

Held that the clause does not preclude an improvement of the stream, by sluiceways, booms and dams, rendering it capable of transporting timber products-a use theretofore impossible be