dissenting.
I greatly regret that I cannot concur in the opinion of the court in this case and the fact that the decision must cost two men their lives impels me to state as briefly as I may my reasons for dissenting from it.
We have before us the record only in the case of Emilio> Valdez.
Valdez is described in the opinion of the trial judge as “a highly educated man and veiy prominent both on account of his social standing and his wealth,” and by the Supreme Court as “a recognized leader of an active political faction and a member of one of the richest, most powerful and influential families in the community.”
He was convicted of lying concealed with another and of shooting, in the early evening, one Eusebio Yuson, also a man of prominence, as he was mounting an outside stairway to the second story of his village home. Pursuant to the practice of the Philippine Islands, the case was tried by a judge without the aid of a jury.
The guilt or innocence of Valdez turns upon the testimony of one Juan Gatmaitan, who was found by the trial court to be so “densely ignorant a man, of so low an order of intelligence and so lacking in instruction both mental and moral” that upon finding him guilty of participating in the murder, the court on this account, reduced his sentence from death to life imprisonment. The Supreme Court says of him that he “is a convicted cattle thief”; that “his testimony in his own behalf is wholly unworthy of credit” and that in his own case he repudiated all of his testimony in the Valdez case and testified in a manner “so incoherent, irrational and incredible as to cast doubt on all that he said in his own behalf.”
To this we must add that this witness Gatmaitan first confessed to having murdered Yuson, without mentioning *447Valdez. That. afterwards, but two, months before, the trial of Valdez, he made affidavit that he and one Mateo Arcilla went to Valdez’ house during the eárly evening of the day of the murder, that Valdez there gave them a shotgun in the village street, and that then the two, without Valdez, went and concealed themselyes oh the lot of Yuson and when he came home “I [Gatmaitan] discharged both barrels of the shotgun at him at. the same time and then ran to Valdez’ house and delivered the shotgun to Nm.”
Next he gave testimony, such as we shall see, on the trial of Valdez and eight days later made bath in prison that the local constables had tortured him for three weeks, not allowing him to sleep day or night, and thereby had forced him to- confess that he and Valdez had .committed the murder, when the truth was he did not know who killed Yuson.
Nine days after this, again under oath, he denied all torture and persecution and says that his testimony on the ■ trial of Valdez was true.
And finally the Supreme Court says that on his own trial he repudiated his testimony in the trial of Valdez, denied all knowledge of the crime and attempted to establish an alibi for himself.
Such is the witness who tells the following amazing story on .which Valdez is sentenced to death:
I can neither read nor write. I never talked with Valdez but three times in my life. The first time I was looking for sugar cane seed and he said to me that “he wished to win my friendship,” — nothing else and we parted. The second time we met in Valdez’ seed field and he offered me a business, which, according to his own statement, was an easy one. I asked Mm what kind of a business it was and he said to me “ that I should kill Eusebio Yuson and that he would pay me 900 pesos” •($450). I told Mm I could not please Mm because I was very busy with my work *448and no one could relieve me in said work. And he told me to say nothing about it to any one and thus we parted. The third time I met Valdez he came to my hut in my sugar cane fields about five o’clock of a Sunday evening (the evening of the murder) and he invited me to return to town and I rode with him in his calesa (carriage) to his home. During this drive of about an hour he said nothing to me. When we arrived at his house he left me in the street and went into the house. When the bell struck the time of evening prayer as he did not come down from the house I thought that he was praying and when he did come down from the house he said nothing to me but handed me a shotgun.
“Q. And what did you do when you received the gun?
A. He still invited me to go to Loasan.
Q. What did he do?
A. He followed me.
Q. Where did you go?
A. To the house of Lieutenant Eusebio Yuson.”
He says that on the way to Yuson’s house he and Valdez stopped at a store and one Figueroa came and told them that Yuson was already there and they then approached Yuson’s house and located themselves in the fence near the staircase (outside the house leading to the second story) and when Yuson arrived Valdez ordered the witness to shoot.
“Q. And what did you do?
A. I tried to shoot but the gun would not go off.
Q. And then?
A. He approached me and said ‘Son of a Whore, he was able to go up and you won’t shoot’ and he showed me how to shoot and right at that moment the gun went off.”
On cross-examination he says he pulled the two triggers and that the gun would not go off and that then Valdez showed him how to shoot. “I was holding the shotgun this way [indicating] and he was showing me how to shoot, *449saying, ‘This way,’ and without more ado the shot came out, the shot gun fell and I was frightened and ran away from the place and I know nothing more.” He says he had never handled fire arms before, and did not know how to shoot a gun and that he did not tell Valdez that he did not know how to shoot. The shot thus fired was the one fatal to Yuson. •
I shall not go into the testimony of the. corroborating witnesses for the prosecution, Mateo Arcilla, who is described by the Supreme Court as “a convicted wife murderer, sentenced to fife imprisonment for that crime since he appeared as a witness at the trial of Valdez,” and Figueroa who with Gatmaitan and Arcilla the trial judge says pleaded guilty before a justice of the peace to murdering Yuson, without implicating Valdez.
The only motive suggested on the part of Valdez for murdering Yuson is a difference between him or his mother (it is not clear which) and Yuson about some boundary and water rights, which had been amicably settled four years before the murder, and an indefinite business rivalry, which is'only remotely alluded to by the-widow of thé deceased.
A careful reading of this entire record convinces me, and the opinions of the lower courts throughout proceed hpon the assumption, that the conviction of Valdez could not be thought of except this story of Gatmaitan which I have thus detailed from the record is believed to be true. Under the authority of the decisions of this court in Wiborg v. United States, 163 U. S. 632, 658; Clyatt v. United States, 197 U. S. 207, and in Diaz v. United States, 223 U. S. 454; I have thus examined this record for the purpose of determining whether there is any substantial evidence to be found in it to warrant the conviction of the defendant, and my conclusion is that there is no such evidence, because after making full allowance for differences of habit, of fife and of character of the persons in*450volved and of the witnesses, I cannot conceive it possible that a man such as Valdez is described to be, even if he desired the death of an enemy or a rival (as to which there is no evidence) would bribe to shoot him an entire stranger of the most ignorant type obtainable, who had never used fire arms; should promise him money to commit the murder; should deliberately hand him, in the early evening, in a village street, the gun with which to shoot the victim; and then should go with the murderer to the scene and participate in the assassination by pulling the trigger which fired the fatal shot.
Comment would be superfluous. The mere narration of the story makes it impossible for me to consent to making it the legal basis for depriving a man of his life, for the testimony of Gatmaitan is not merely mistaken testimony due to faulty recollection or statement, but one of his series of stories is necessarily, consciously and corruptly false, and therefore the other should not be relied upon, especially not in a capital case. It is not uncommon for ignorant and corrupt men to falsely charge others with doing what they imagine that they themselves, in their narrow minds and experience, would have done under the circumstances of a given case, and the surest check, often the only check, on such perjury, is to recognize the impossibility that men of larger instruction and resources and experience could have been guilty of such conduct. It is, of course, possible that Valdez committed or inspired this crime but it is impossible to believe that he would have committed it in the crude, certain to be detected, manner described by Gatmaitan.
This conclusion is arrived at putting wholly aside the defense of the accused, in which he took the witness stand and, so far as the record shows, sustained himself through a searching cross-examination, in a categorical denial of the, to me, utterly incredible stories of the prosecuting witnesses.
*451But even if the evidence in the case were deemed by me credible I still should conclude that the judgment should be reversed for the purely legal reason which I shall now state.
When the state closed its evidence in rebuttal the,, prosecuting attorney requested the court (there was-no jury) to view the scene of the murder. To this counsel for the accused assented but with the request that “no testimony be taken- because it produced great confusion when trying to examine witnesses at the place of the. occurrence.” To this request the prosecuting attorney replied: “What Mr. Southworth says would be very advisable, but I believe it would be, very advisable also not to dispense with the task in which the court may exercise its discretion, so that when, said court arrives there it may ask of unknown persons where the deceased fell, where the wad was found, where Gatmaitan was, and where Mateo Arcilla, was.”
Then this follows:
“The Court: The court has no objection to making that inspection after the defense has produced its rebuttal evidence, not showing in the record the result of said inspection.
Mr. Southworth: We have no rebuttal evidence.
The Court: So that we may close the case?
Mr. Chicote: Yes, sir.
The Court: Good, tomorrow you may present your arguments. The session of the court is closed,”
The record further shows that' the judge visited the scene of the murder, that Valdez was confined in prison several miles away at the time of the visit and that he was neither required nor invited to be present at the view. .
The visit to the scene by the judge without the presence of the accused is assigned as one of the reasons why a new trial .should be granted, on the ground that such action violated § 5 of the Act of Congress of July 1st, 1902, *452known as the “Philippine Bill,” and also Article VI of the Amendments to the Constitution of the United States, providing that the accused “shall enjoy the right to be confronted with the witnesses against him.”
What was done by the judge at this view is the subject of much dispute and conflict of statement made in affidavits on motion for a new trial. A typical statement in the interest of the accused of what occurred is made by his attorney, who is described in the record as a reputable member of the bar, who stated that the widow of the deceased explained to the judge what she claimed had taken place on the night of the murder, pointing out where the deceased had fallen, and discussing many other matters in connection with the case, she weeping and wringing her hands all of the time that such interview was in progress, and that one Crockett, a constable, was active in indicating to the court various points and circumstances connected with the murder, all of this against objections made by counsel as to the conduct of the widow and Crockett.
A typical affidavit introduced by the State was by the private prosecutor Buencamino, who stated that he was present at the view, that the judge “neither received any evidence nor admitted any testimony referring to the case then being prosecuted against Valdez, and according to my best recollection I did not see the widow crying, but I saw her at a place distant from the judge. I also state that Captain Crockett did not give any evidence before the judge.”
An assistant attorney for the Government made affidavit that at no time did he see the widow crying or talking to the judge, or illustrating how her husband had fallen.
However, a photograph of the scene at the time of the view indicates that it must have been a very unusual local event for a large crowd was present, and in this photograph the widow is shown in a position which must have been *453very close to the judge and it is very significant that there is no statement from the judge as to just what he did and as to what occurred at the view.
It has long been familiar, textbook, law, that a viewing of the premises where-the crime is alleged to have been committed is part of the trial. Thus, in Wharton’s Criminal PI. & Pr., 9th ed., § 707, it is said: “The visit [of the jury] must be made ... in the presence of the accused, who is entitled to have all evidence received by the jury taken in his presence.”' And in Enc. of PI. & Pr., vol. XXII, p. 1059, it is said: “In criminal cases the accused is entitled to be present if the jury is sent to view the locus of the crime, as a view in the absence of the accused would violate his constitutional right to appear in person and be confronted with the witnesses against him.”
But the law upon this subject has been recently summed up by this court (Diaz v. United States, 223 U. S. 442, 454) in an admirable statement, which in my judgment rules the case before us, and is as follows:
“We are thus brought to the question whether the provision in § 5 of the Philippine Civil Government Act, securing to the accused in all criminal prosecutions ‘the right to be heard by himself and counsel,’ makes his presence indispensable at every stage of the trial, or invests him with a right whiqh he is always free to assert but which he also may waive by his voluntary act. Of course if that provision makes his presence' thus indispensable, it is of no moment that the Philippine laws do not go so far, for they cannot lessen its force or effect. An identical or- similar provision is found in the constitutions of the several States, and its substantial equivalent is embodied in the Sixth Amendment to the Constitution of the United States. It is the right which these constitutional provisions secure to persons accused of crime in this country that was carried to the Philippines 'by the congressional enactment, and, therefore, according to a familiar rule, *454the prevailing course of decision here may and should he accepted as determinative of the nature and measure of the right there. Kepner v. United States, 195 U. S. 100, 124.
“. . . In cases of felony bur courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. . . .
“The reasoning upon which this rule of decision rests is clearly indicated in Barton v. State, supra, [67 Georgia, 653] where it is said by the Supreme Court of Georgia:
“'It is the right of the defendant in cases of felony . . . to be present at all stages of the trial — especially at the rendition of the verdict, and if he be in such custody and confinement ... as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside. . . . The principle thus ruled is good sense and sound law; because he cannot exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the court by its order.’ ”
It is difficult to imagine a case which would show the value of this rule more strongly than the case we are considering. If the description of what occurred as given by counsel for the defendant is even approximately true it is not improbable that even the most stoical judge might have been influenced by it, and the presence of the defendant might very well' have' had a counterbalancing *455influence, and in addition to this he was entitled to the benefit of any suggestion w„hich he might have been able, to make through his counsel.
It is very clear to my mind that Diaz v. United States, supra, in principle rules this case and that the viewing of the scene of the murder by the judge without the presence of the accused requires that it be reversed and a new trial granted.
That the conclusion I have reached in this case is not idiosyncratic or the result of an undue regard for a man’s life when it is adequately proved to have been forfeited under the law is, I think, sufficiently shown by the fact that two of the members of the Supreme Court of the Philippine Islands expressed their estimate of the case made against Valdez by this record in these terms:
Moreland, J., dissenting: “I dissent. I think that the least the accused is entitled to under the facts and the law is a new trial. I believe, however, that he is entitled to an acquittal upon the facts as presented.” And
Grant T. Trent, J.: “I dissent on the ground that . . . the prosecution has not proved the guilt of the appellants of the crime of which they were convicted.”
For the reasons thus stated,. I am of opinion that this record does not show any credible testimony supporting the judgment, that upon the authorities cited it rests upon error of law gravely prejudicial to the accused and that it therefore should be reversed and a new trial granted.
I am authorized to say that the Chief Justice concurs in this opinion.