U.S. Supreme Court SNYDER v. COM. OF MASS., 291 U.S. 97 (1934)

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counsel. Opportunity was ample to learn whatever there was need to know.

If the risk of injustice to the prisoner is shadowy at its greatest, it ceases to be even a shadow when he admits that the jurors were brought to the right place and shown what it was right to see. That, in substance is what happened here. On the trial, photographs and diagrams of the scene of the homicide were put in evidence by the commonwealth and placed before the jury. There was no suggestion by the defendant or his counsel that these photographs and diagrams did not truly represent the place that had been seen upon the view. There was no suggestion of any change except the one that was conceded. The defendant took the stand and admitted that he was at the gasoline station at the time of the crime. He tried to reduce the grade of his wrongdoing by testifying that the shot had been fired by his codefendant, Donnellon, and that larceny, not robbery, was the aim of the conspiracy. [Footnote 1] In the course of his testimony, he described his own and Donnellon's movements with the aid of the diagram in evidence. At the end of the trial he made a brief statement to the jury, supplementing the argument that had been made by his counsel. 'I am sorry' he said, 'that I had any part in the crime. I am sorry for the grief I have caused. But I did not fire the fatal shot. That is all.' Nowhere is there a suggestion of any doubt as to the place. Like concessions are implicit in the summing up of counsel. His argument reminds the jurors of what they had seen upon

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the states a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.' Ownbey v. Morgan, supra, page 110 of 256 U.S., 41 S.Ct. 433, 438, 17 A.L.R. 873. What is fair in one set of circumstances may be an act of tyranny in others. This court has not yet held that even upon a trial in court the absence of a defendant for a few moments while formal documents are marked in evidence will vitiate a judgment. [Footnote 2] Cf. Commonwealth v. Kelly, 292 Pa. 418, 141 A. 246. But we do not need to dwell upon the measure of the privilege at such a time or in such conditions. Whatever it may be, not even an intimation will be found in our decisions that there is a denial of due process if the accused be excluded from a view, though present at every stage of the proceedings in the court. It is one thing to say that the prevailing practice is to permit the accused to accompany the jury, if he expresses such a wish. It is another thing to say that the practice may not be changed without a denial of his privileges under the Constitution of the United States. To hold this in the light of the historic concept of a view as something separate from a trial in court and in the light of the shadowy relation between the defendant's

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local practice as an essential condition of due process under the Federal Constitution. Some courts have put their decision on the ground that a view is part of the trial. State v. McGinnis, 12 Idaho, 336, 85 P. 1089; Freeman v. Commonwealth, 226 Ky. 850, 10 S.W.(2d) 827; Noell v. Commonwealth, 135 Va. 600, 619, 115 S.E. 679, 30 A.L.R. 1345; Benton v. State, 30 Ark. 328, 350. Others have held that it is not. People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L.R.A. 368; State v. Rogers, 145 Minn. 303, 177 N.W. 358; Washington v. State, 86 Fla. 533, 98 So. 605; State v. Mortensen, 26 Utah, 312, 73 P. 562, 633. Cf. State v. Congdon, 14 R.I. 458, 463; State v. Hilsinger, 167 Wash. 427, 437, 438, 9 P.(2d) 357. A trial, they remind us, is appointed to be held in a courthouse or a place designated by statute with a judge or magistrate presiding. People v. Thorn, at page 297 of 156 N.Y. 50 N.E. 947, 42 L.R.A. 368. A view may be had anywhere. Some courts, placing the emphasis on the privilege of confrontation, have thought that a view is equivalent to an examination of a witness, and that the privilege of attendance may not even be waived. Noell v. Commonwealth, supra; State v. McCausland, 82 W.Va. 525, 96 S.E. 938; Benton v. State, supra; Foster v. State, 70 Miss. 755, 12 So. 822; State v. Stratton, 103 Kan. 226, 173 P. 300. Other courts have held, and plainly with the better reason, that physical objects are not witnesses, even though they have the quality of evidence, and that the defendant is at liberty to waive the privilege to view them, if such a privilege exists. People v. Thorn, supra; Elias v. Territory, 9 Ariz. 1, 76 P. 605, 11 Ann. Cas. 1153; Blythe v. State, 47 Ohio, 234, 24 N.E. 268; State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33; State v. Buzzell, 59 N.H. 65. Cf. Patton v. United States, supra. [Footnote 3] Still others, though conceding the possibility of

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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 of the 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. [Footnote 4] 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. [Footnote 5] Though the usual and customary forms of procedure be disregarded, the hearing may neverthe-

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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,6 or prescribe any one method of trial,7 or adhere to any set mode of selecting the triers of fact. [Footnote 8] To conform to modern conditions, they may substitute a new form of procedure for one long practiced and recognized. [Footnote 9] 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,10 the participation of a judge affected with a personal interest in the result, 11 the forcing of a trial under pressure of mob domination,12 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. [Footnote 14]

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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. [Footnote 16]

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the witnesses against him, and have the assistance of counsel for his defense. But the purpose that all trials, in state as well as national tribunals, should not lack the same quality of fairness, is evidenced by the embodiment of a guaranty of similar import in the Constitution of every state in the Union. [Footnote 19] Out of excess of caution the fundamental law of many of the states specifically safeguards the right of the accused, 'to appear and defend in person.' [Footnote 20] But mere differences in phraseology have not obscured the fact that all these instruments were intended to secure the same great privilege-a fair hearing. Accordingly, the courts have uniformly and invariably held that the Sixth Amendment, as respects federal trials, and the analogous declarations of right of the state Constitutions touching trials in state courts, secure to the accused the privilege of presence at every stage of his trial. This court has so declared. In commenting upon the section of the Philippine Civil Government Act which extends to the accused in all criminal prosecutions 'the right to be heard by himself and counsel' (32 Stat. 692, 5), this was said: 'An identical or similar provision is found in the Constitutions of the several states, and its substantial equiv-

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cific terms from abridging the right. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 73 A.L.R. 1484; Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625. ... '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, 47 S. Ct. 103, 48 A.L.R. 1102), 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.' Pages 66, 67 of 287 U.S., 53 S.Ct. 55, 63.

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. [Footnote 25] Many decisions hold that he may waive the

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privilege;26 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. [Footnote 27]

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premises was had. Matters were called to the jury's attention in detail so that they could form judgments of distance, relative position, the alignments 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. Footnotes

Footnote 1 Under the law of Massachusetts, homicide is murder in the first degree when committed 'with deliberately premeditated malice aforethought' or in the commission or attempted commission of a crime that would be punishable, if there were no homicide, with imprisonment for life. Robbery by one armed with a dangerous weapon is a crime so punishable, but not larceny or attempted larceny. General Laws (Ter. Ed.) Mass. c. 265, 1 and 17.

Footnote 2 What was said in Hopt v. Utah, supra, and Schwab v. Berggren, supra, on the subject of the presence of a defendant was dictum, and no more. See this opinion (291 U.S. 106, 54 S.Ct. 332). We may say the same of Lewis v. United States, supra, with the added observation that it deals with the rule at common law and not with constitutional restraints.

There are decisions in the state courts that a conviction will stand even though rulings have been made by the trial court in the absence of the defendant if it appears that they could not by any possibility have resulted to his hurt. Whittaker v. State, 173 Ark. 1172, 294 S.W. 397; Lowman v. State, 80 Fla. 18, 85 So. 166. The Supreme Court of Pennsylvania held in Commonwealth v. Kelly, supra, that the burden was on the defendant to show a probability of injury.

Footnote 3 Cases relating to the procedure at a view are not to be confused with cases where the defendant was absent during the examination of witnesses or the charge of the judge. Examples of such cases are Slocovitch v. State, 46 Ala. 227; People v. Beck, 305 Ill. 593, 137 N.E. 454; State v. Hutchinson, 163 La. 146, 111 So. 656; Duffy v. State, 151 Md. 456, 135 A. 189; State v. Jackson, 88 Mont. 420, 293 P. 309; State v. Dixon, 185 N.C. 727, 117 S.E. 170; State v. Schasker, 60 N.D. 462, 235 N.W. 345; State v. Chandler, 128 Or. 204, 274 P. 303. In most, if not all, there was an express statutory or constitutional requirement of presence at the trial, a requirement so clear as to leave little room for construction. One court has gone so far as to require the presence of the defendant upon a motion for a new trial (State v. Hoffman, 78 Mo. 256), in opposition to the judgments of this court in Schwab v. Berggren and Lewis v. United States, supra.

As to the rule where the crime is of the grade of a misdemeanor only, see United States v. Santos, 27 Fed.Cas. page 954, No. 16,222; United States v. Shelton (D.C.) 6 F.(2d) 897; Gray v. State, 158 Tenn. 370, 13 S. W.(2d) 793. Cf. Hopt v. Utah, supra, at page 576 of 110 U.S., 4 S.Ct. 202.

[Footnote 1] 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.'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.'

[Footnote 2] 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.'Mr. Volpe: Yes, your Honor.'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.'

[Footnote 3] 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.'

Footnote 4 Hurtado v. California, 110 U.S. 516, 524, 532 S., 4 S.Ct. 292; Louisville & Nashville Rd. Co. v. Schmidt, 177 U.S. 230, 236, 20 S.Ct. 620; Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836; Holmes v. Conway, , 36 S.Ct. 681.

Footnote 5 Hagar v. Reclamation District No. 108, 111 U.S. 701, 708, 4 S.Ct. 663; Hooker v. Los Angeles, 188 U.S. 314, 318, 23 S.Ct. 395, 63 L.R.A. 471; Twining v. New Jersey, 211 U.S. 78, 111, 29 S. Ct. 14.

Footnote 6 Hurtado v. California, supra; Caldwell v. Texas, , 11 S. Ct. 224; Bolln v. Nebraska, 176 U.S. 83, 20 S.Ct. 287; Barrington v. Missouri, 205 U.S. 483, 27 S.Ct. 582.

Footnote 7 Walker v. Sauvinet, 92 U.S. 90; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448; Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651.

Footnote 8 Brown v. New Jersey, 175 U.S. 172, 20 S.Ct. 77; Howard v. Kentucky, 200 U.S. 164, 26 S.Ct. 189; Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 5 Ann.Cas. 783.

Footnote 9 Hurtado v. California, supra, pages 528, 529 of 110 U.S., 4 S.Ct. 292; Twining v. New Jersey, supra, page 111 of 211 U.S., 29 S.Ct. 14.

Footnote 10 Windsor v. McVeigh, 93 U.S. 274, 282; Standard Oil Co. v. Missouri, 224 U.S. 270, 281-282, 32 S.Ct. 406, Ann. Cas. 1913D, 936.

Footnote 11 Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 50 A.L.R. 1243.

Footnote 12 Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265.

Footnote 13 Saunders v. Shaw, 244 U.S. 317, 37 S.Ct. 638.

Footnote 14 Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 84 A.L. R. 527.

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

Footnote 15 Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525; Dowdell v. United States, 221 U.S. 325, 331, 31 S.Ct. 590.

Footnote 16 Hopt v. Utah, , 4 S.Ct. 202; Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, Ann. Cas. 1913C, 1138.

Footnote 17 Lewis v. United States, supra, page 372 of 146 U.S., 13 S.Ct. 136, 137.

Footnote 18 Hopt v. Utah, supra, page 279 of 110 U.S., 4 S.Ct. 202, 204.

Footnote 19 In two states (California and Nevada) the Constitutions omit reference to the right of the accused to confront the witnesses against him; but the omission is supplied by statute; Cal. Stats. 1911, ch. 187, p. 364, Penal Code, 686; Nevada Compiled Laws, 1929, vol. 5, 10654.

Footnote 20 Arizona, Const. of 1910, art. 2, 24; California, Const. of 1879, art. 1, 13; Colorado, Const. of 1876, art. 2, 16; Idaho, Const. of 1889, art. 1, 13; Illinois, Const. of 1870, art. 2, 9; Kansas, Const. of 1859, Bill of Rights, 10; Missouri, Const. of 1875, art. 2, 22; Montana, Const. of 1889, art. 3, 16; Nebraska, Const. of 1875, art. 1, 11; Nevada, Const. of 1864, art. 1, 8; New Mexico, Const. of 1911, art. 2, 14 (as amended); New York, Const. of 1894, art. 1, 6; North Dakota, Const. of 1889, art. 1, 13; Ohio, Const. of 1851, (as amended Sept. 3, 1912), art. 1, 10; South Dakota, Const. of 1889, art. 6, 7; Utah, Const. of 1895, art. 1, 12; Washington, Const. of 1889, art. 1, 22; Wyoming, Const. of 1889, art. 1, 10.

Footnote 21 Diaz v. United States, supra, page 454 of 223 U.S., 32 S.Ct. 250, 253.

Footnote 22 La. Code Crim. Proc. (Dart 1932) art. 365; Ann. Laws of Mass., vol. 9, ch. 278, 6; Comp. Laws Michigan, 1929, vol. 3, ch. 287, 17129; Revised Codes of Montana, 1921, vol. 4, part. 2, ch. 1, 11611; Nevada Comp. Laws, 1929, vol. 5, 10654, 10921; New York Code of Crim. Proc. Cahill, 8, par. 2; No. Dak. Comp. Laws 1913, vol. 2, 10393; Code of Laws of South Carolina, 1932, 993; Vermont General Laws 1917, 2496; Virginia Code of 1930, 4894; Pierce's Washington Code, 1086-324; Wisconsin Statutes 1931, 357.07; Wyoming Revised Statutes 1931, 33-903.

Footnote 23 Slocovitch v. State, 46 Ala. 227; Whittaker v. State, 173 Ark. 1172, 294 S.W. 397; Lowman v. State, 80 Fla. 18, 85 So. 166; Chance v. State, 156 Ga. 428, 119 S.E. 303; People v. Beck, 305 Ill. 593, 137 N.E. 454; Batchelor v. State, 189 Ind. 69, 125 N.E. 773; State v. Reidel, 26 Iowa, 430; Riddle v. Comm., 216 Ky. 220, 287 S.W. 704; State v. Hutchinson, 163 La. 146, 111 So. 656; Duffy v. State, 151 Md. 456, 135 A. 189; Comm. v. Cody, 165 Mass. 133, 42 N.E. 575; State v. Dingman, 177 Minn. 283, 225 N.W. 82; Foster v. State, 70 Miss. 755, 12 So. 822; State v. Hoffman, 78 Mo. 256; State v. Jackson, 88 Mont. 420, 293 P. 309; Miller v. State, 29 Neb. 437, 45 N.W. 451; State v. Duvel, 103 N.J. Law, 715, 137 A. 718; People v. Perkins, 1 Wend.(N.Y.) 91; State v. Dixon, 185 N.C. 727, 117 S.E. 170; State v. Schasker, 60 N.D. 462, 235 N.W. 345; Cole v. State, 35 Okl.Cr. 50, 248 P. 347; State v. Chandler, 128 Or. 204, 274 P. 303; Gray v. State, 158 Tenn. 370, 13 S.W.(2d) 793; Schafer v. State, 118 Tex.Cr.R. 500, 40 S.W.( 2d) 147; State v. Mannion, 19 Utah, 505, 57 P. 542, 45 L.R.A. 638, 75 Am. St.Rep. 753; Palmer v. Comm., 143 Va. 592, 130 S.E. 398; State v. Shutzler, 82 Wash. 365, 144 P. 284; State v. Howerton, 100 W.Va. 501, 130 S.E. 655.

Footnote 24 See the cases cited in notes 16 and 23.

Footnote 25 Benton v. State, 30 Ark. 328; People v. Bush, 68 Cal. 623, 10 P. 169; Id., 71 Cal. 602, 12 P. 781; Washington v. State, 86 Fla. 533, 98 So. 605; Chance v. State, 156 Ga. 428, 119 S.E. 303; State v. McGinnis, 12 Idaho, 336, 85 P. 1089; Freeman v. Comm., 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, Ann. Cas. 1915B, 557 (semble); Bailey v. State, 147 Miss. 428, 112 So. 594; Carroll v. State, 5 Neb. 31; Colletti v. State, 12 Ohio App. 104; Watson v. State (Tenn.) 61 S.W.(2d) 476; State v. Mortensen, 26 Utah, 312, 73 P. 562, 633; Noell v. Comm., 135 Va. 600, 115 S.E. 679, 30 A.L.R. 1345; State v. Hilsinger, 167 Wash. 427, 9 P.(2d) 357; State v. McCausland, 82 W.Va. 525, 96 S.E. 938.

Footnote 26 Whitley v. State, 114 Ark. 243, 169 S.W. 952; People v. Searle, 33 Cal.App. 228, 164 P. 819; Haynes v. State, 71 Fla. 585, 72 So. 180; State v. Stratton, 103 Kan. 226, 173 P. 300; State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33; Colletti v. State, 12 Ohio App. 104; Starr v. State, 5 Okl.Cr. 440, 115 P. 356; State v. Congdon, 14 R.I. 458; Jenkins v. State, 22 Wyo. 34, 134 P. 260, 135 P. 749.

Footnote 27 Elias v. Territory, 9 Ariz. 1, 76 P. 605, 11 Ann.Cas. 1153; Shular v. State, 105 Ind. 289, 4 N.E. 870, 55 Am.Rep. 211; 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, 42 L.R.A. 368; State v. Sing, 114 Or. 267, 274, 229 P. 921; Comm. v. Van Horn, 188 Pa. 143, 41 A. 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.

Footnote 28 Compare with cases cited in note 25 the following: Jenkins v. State, 22 Wyo. 34, 134 P. 260, 135 P. 749; State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33; People v. Thorn, 156 N.Y. 286, 50 N.E. 947, 42 L. R.A. 368; Starr v. State, 5 Okl.Cr. 440, 115 P. 356; State v. Lee Doon, 7 Wash. 308, 34 P. 1103.

Footnote 29 Patton v. United States, 281 U.S. 276, 292, 50 S.Ct. 253, 256, 70 A.L.R. 263.