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Lucas Circuit Court.

ice of the Supreme Court of the United States. The court say, in the fifth paragraph of the syllabus:

"During the trial the jury were sent under charge of an officer to view the place where the crime was committed. Neither the judge, the clerk, the attorneys, nor the defendant, accompanied them. The record does not show that defendant applied for leave to accompany them, or made any objection to their going, or presented this action of the court as ground for a new trial: Held, No ground for reversing the judgment of conviction, notwithstanding section 10 of the bill of rights provides that, 'in all prosecutions the accused shall be allowed to appear and defend in person or by counsel, to meet the witnesses face to face,' and section 207 of the code of criminal procedure provides that 'no person indicted or informed against for a felony can be tried unless he is personally present during the trial.'"

On page 323 this question is discussed by Judge Brewer. He quotes the statute under which the view is held, and it is practically identical with the Ohio statute, so that the case is directly in point. He says:

"This claim of appellant finds some warrant in the authorities. In 3 Whart. Am. Criminal Law (7th ed.), Sec. 3160, it is said that the defendant ought to be permitted to accompany the jury in such a visit of inspection. In State v. Bertin, 24 La. Ann. 46, it was held that where the defendant was not permitted to accompany the jury, there was fatal error; while the case of Benton v. State, 30 Ark. 328, to the same effect, is on all fours with the case at bar."

The judge then speaks of the Arkansas case to which I have referred, and says:

"There the record is silent as to any request of defendant, and simply discloses that as a fact the jury went alone in charge of the officer. There also a juror, and not an outside party, was appointed to show the premises. In these respects the cases are parallel. More than that, the Arkansas statutes and constitution are like ours. So that the case is squarely in point. Notwithstanding, we cannot concur with these authorities, and are of opinion that the action of the court was authorized by the statute and was without error. Section 316, above cited, plainly authorizes just what was done. They were conducted in a body under charge of an officer. So the statute reads. One of their number was appointed by the court to show them the place. So runs the language of the section. Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems to imply that only the jury and officer in charge are to be present. The trial is not temporarily transferred from the courthouse to the place of view. They are to be conducted in a body, 'while thus absent.' This means that the place of trial is unchanged, and that the jury and the jury only, are temporarily removed therefrom. Just as when the case is finally submitted to the jury, and they retire for deliberation,' there is simply a temporary removal of the jury. The place of trial is unchanged."

And on page 335, the court say:

"Section 207 does not imply that the defendant must be with the jury, and keep in their presence all the time, but rather that he must remain with the court, and keep in its presence. The court is the fixed and permanent thing; the jury only temporary, and serving but a partial purpose in the trial. And the defendant must be in the presence

Reighard v. Ohio.

of the court, to be personally present during the trial. So that as between the two sections of the statute there is really no conflict; and in exercising the discretion conferred by the one, the court in no manner violated the other."

The court then proceeds to discuss the constitutional right of the defendant and say, in conclusion:

"We are of the opinion therefore, that the fact that the jury were sent in a body under charge of an officer to view the place of the crime, unaccompanied by the defendant, is not necessarily an error fatal to the trial, and that where the record discloses no objection thereto by the defendant, and no application for permission to accompany them, and no error alleged on account thereof in the motion for a new trial, it is too late to insist in this court that the judgment must be reversed therefor." In Shular v. State, 105 Ind. 289 [4 N. E. Rep. 870], the court say in the syllabus:

"The court may, without error, upon the request of the defendant. in a prosecution for murder, send the jury, unaccompanied by the defendant, to inspect the premises where the homicide was committed, as such view does not constitute evidence in the case."

And, on page 293 of the opinion they say:

"The court, on motion of the appellant, sent the jury to inspect the premises where the homicide was committed, and did not direct that the defendant should be present when the inspection was made; but no request was made by the defendant that he should be allowed to be present, nor was there even a suggestion to the court that he desired to accompany the jury; nor did he, although he was present when the jury left the court room, ask that he be permitted to go with them; nor did he object in any manner to their making the inspection. But the record shows more than this, for it shows that the court directed the attention of the defendant and his counsel to the statute, stated that it required the consent of the parties, and inquired if they consented to the order, to which inquiry, as the record recites, the defendant's counsel responded 'by renewing their request, and the defendant indicated his assent.'"

In that state, it seems that the statute requires the assent of the parties. On page 294, the court say (and this statute is similar to ours):

"This statute does not intend that the view of the premises where a crime was committed shall be deemed part of the evidence, but intends that the view may be had for the purpose of enabling the jury to understand and apply the evidence placed before them, in the presence of the accused in open court. Deferring, for the present, the consideration of the authorities, and reasoning on principle, we shall have no difficulty in concluding that the statute does not intend that an inspection of a place where a crime was committed shall be taken as evidence. It cannot be seriously doubted that evidence can only be delivered to a jury in a criminal case in open court, and, unless there is a judge, or judges present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection. This is so obvious that discussion could not make it more plain. The jury are not, the statute commands, to be spoken to by anyone save by the officer and the person appointed by the court, and they are forbidden to talk upon the subject of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant, or by his counsel, if they were present, so that their presence

Lucas Circuit Court.

could not benefit him in any way, nor their absence prejudice him. The statute expressly provides who shall accompany the jury, and this express provision implies that all others shall be excluded from that right or privilege. It is quite clear from these considerations, that the statute does not intend that the defendant or the judge shall accompany the jury, and it is equally clear that the view obtained by the jury is not to be deemed evidence."

The court then goes into a full discussion of the question, reviewing the authorities at length, and holding that there was no error in the trial of the case on this ground.

I call attention also to the case of Oregon v. Ah Lee, 8 Ore. 214, where the court held:

"Where, on a trial for murder in the first degree, the court, upon the application of the state, directed a view of the place of the alleged killing by the jury: Held, that the omission by the court to provide for the presence of the defendant or his counsel at the view, no application therefor having been made by the defendant or his counsel at the time the view was ordered, was not error."

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And the court say, on page 217:

"The appellant, if he desired to be present at the view, should then have made application for that purpose. If he had desired to see the place where the homicide took place, in order to be better prepared to make his defense, doubtless the court would have permitted him to accompany the jury in the custody of an officer. But failing to make known any desire to be present at the view, he must be deemed to have waived any privilege which he had in this respect."

This court held squarely and expressly that this order being made by the court, the defendant indicating no desire to accompany the jury, he must be held to have waived his privilege.

The Supreme Court of Rhode Island holds likewise in State v. Congdon, 14 R. I. 458:

"When a view is had in a criminal case the accused may waive his right to be present at the view. Such a waiver is presumed when he does not ask to be present and makes no objection in the course of the trial after the view; and when the view was allowed at the request of his counsel, who stated that the health of the accused precluded his attendance.

In the well-known case of Commonwealth v. Webster, 5 Cush. 295 [52 Am. Dec. 711], where Prof. Webster was tried for murder in the first degree, Chief Justice Shaw presiding, a statement of the history of the case in the report shows that the jury were there ordered to view the premises, and from the language used, it appears that the defendant did not accompany the jury. On page 298 is this:

"The attorney general after opening the case, suggested that it would be desirable that the jury should be permitted to go to the medical college, and take a view of the premises where the murder was alleged to have been committed. The court said that they had no doubt of their authority to grant a view, if they deemed one expedient; and that views had been granted of late in several capital cases in this country. And the court afterwards, on adjou ning for the day, directed that the jury should be permitted to take a view of the medical college on the next morning before the coming in of the court, attended by two officers and one counsel of each side."

Re ghard v. Ohio.

The defendant was afterwards convicted of murder in the first degree, as is well known, and was executed.

It has been held in this state that the view by the jury of the premises, in a civil case, except it be in condemnation proceedings, where the jury are to judge of the value of the property, is not to be regarded as evidence, nor so to be considered by the jury. I refer to Machader v. Williams, 54 Ohio St. 344 [43 N. E. Rep. 324], where the Supreme Court


"The view by the jury of the property which is the subject of litigation, or of the place where a material fact occurred, which may be ordered in a civil action under Sec. 5191, Rev. Stat., is solely for the purpose of enabling them to apply the evidence offered upon the trial." And the language of Sec. 5191, Rev. Stat., which applies to civil cases is similar to the language as to criminal cases.

The Supreme Court held in Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89], that where experiments were performed in presence of the jury, by consent of the parties, what the jury saw was to be considered as evidence.

In Blythe v. State, 47 Ohio St. 234 [24 N. E. Rep. 268], the Supreme Court held that it was not error for the jury to view the premises, although the defendant refused to accompany the jury. They say:

"It is not error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view."

Referring to Sec. 7301, Rev. Stat., the court say:

"This section does not require the actual presence of the accused in court at all times during his trial, but prescribes that one out of the Jurisdiction or control of the court, cannot be tried for a felony, and notwithstanding this section (7301, Rev. Stat. ), one on trial for a felony and not in actual custody, may pass in and out of the court room, and remain absent for considerable periods of time, without rendering the progress of the trial during his absence erroneous. Therefore, it a view such as is authorized by Sec. 7283, Rev. Stat., be a part of the trial within the meaning of Sec. 7301, Rev. Stat., yet, as the court of common pleas expressly granted to plaintiff in error permission to accompany the jury when the view was taken, which privilege, under advice of counsel he declined to accept, he must be deemed to have voluntarily absented himself, and thereby waived his right and privilege to be present when the view was taken. The court of common pleas having granted him the privilege to accompany the jury, was not bound to compel him to accept it."

It will be seen from all these cases that there is some conflict in the authorities, but the holdings appear to be pretty uniform that, whether this view is to be considered as a part of the trial or not, the defendant may waive his privilege to accompany the jury and that it is not error to permit the jury to view the premises, under such a statute, in the absence of the defendant, if he waives it. If he requests permission to go, and is refused, or if his conduct is not tantamount to a waiver, it raises a different question. We do not think it is necessary for us in this case to decide whether the view of the premises is to be considered a part of the trial, or not, or whether the defendant would have a right to accompany the jury if he requested to; we are, however, inclined to the view that, if the defendant requested permission to accompany the jury, or if he did

Lucas Circuit Court.

not waive it, by his words or conduct, that he should be permitted to go with the jury to the premises and that he would have a right to do so if he, or his counsel, was of the opinion that it was necessary for him in his defense.

The record, however, shows, in this case, that the motion to view the premises was made by the defendant himselt; it was not made on motion of the state and granted over the objection of defendant, as in Hotelling v. State, supra, but the defendant's counsel, after the examination of a witness-in-chiet, suggested to the court, that before he crossexamined the witness, he desired to have the jury view the premises, as I have read, and stated to the court that he thought there would be much gained by such view; and then, in the presence of defendant, a discussion was had, between counsel on both sides and the court, as to the premises that it was necessary for the jury to view, different places and different houses, and the defendant himself took part in this talk, which was held in open court after this motion had been made, and defendant gave the number of the house where he lived, and stated that it was on Camden street: "1204 Camden street is the residence I resided at."

So that it appears from the record that the action of the court was taken upon the motion of defendant, who asked the court to make this order, through his counsel, and that he made no request to accompany the jury; that he heard the court instruct the jury as to what they would do upon this view and who would be permitted to accompany them and that no one would be permitted to speak to them except the sheriff and the person having them in charge. To all of this he made no objection, and the jury were taken in charge by the sheriff to view the place and the defendant was taken back to the county jail.

Affidavits were filed on motion for a new trial, that of the defendant, among others, and also the affidavit of his counsel and that of the prosecuting attorney.

Mr. Wilkinson, counsel for defendant, makes affidavit and says that at the time the jury left the court room be was busy; that he overtook the jury on Summit street and then noticed that the defendant was not along, and then said to Mr. Sumner, the prosecuting attorney, "The defendant should go with the jury to view the premises. Mr. Sumner replied, "Did you want the defendant along?" That "affiant said, 'yes, he ought to go along with the jury.'"'

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He then says that at this juncture the car came along and they all went to view the premises. There was no formal objection made at that time to the jury proceeding without the defendant; no request made by Mr. Wilkinson that the jury return to the courthouse and have the defendant, by order of the court, accompany them.

Mr. Sumner says, in his affidavit, that he has no recollection of hearing Mr. Wilkinson say: "Yes, he ought to go along with the jury." He says that Mr. Wilkinson did suggest to him that the defendant was not along.

The defendant himself in his affidavit says "that there was an order made by the court for the jury, during the progress of the trial, to visit the place where the alleged crime was committed, and the jury was taken away from the court room by the sheriff, and I, the affiant, was taken to the county jail and locked up. No one asked me to go with the jury, and, in fact, nothing was said by anyone to me about going with the

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