It is the settled law of this state that a person on trial for a capital offense can no nothing to prejudice his legal rights or to procure his own conviction. The prosecution cannot procure a lawful conviction without observing all the forms of law, including the observance of every right of the accused, whether he demands the right or attempts to waive it. When an accused person is in custody and in the power of the law he is legally incapable of waiving any of his rights, not even by a plea of guilty in open court. (Code. Crim. Pro. § 332.) He cannot be legally tried without being present at every stage of the trial. When, in this case, the jury was permitted to inspect the house and premises where it was alleged that the crime was committed, the defendant *Page 301 had the right to be present. The view of the place by the jury was evidence in the case presented to the mind through the senses. It was so treated by the learned trial judge in his charge. It was substantially a part of the trial, and it is only because such a view may tend to enlighten the mind with reference to the issues of fact in the case that such a proceeding can have any place in criminal procedure. If it was the right of the accused to be present he could not waive that right any more than he could the right to be present at any other stage of the proceedings. The case is not changed by the fact that the order for a view of the place was in the discretion of the court. The defendant's right to be present is fundamental and does not rest on any discretionary power. If the court concludes to exercise this discretion it must see to it that the rights of the accused are observed by being present, whether he demands that right or attempts to renounce it. As I read the authorities they are all one way and against the contention of the People on this question. (Cancemi v. People, 18 N.Y. 128; Maurer v.People, 43 N.Y. 4; Messner v. People, 45 N.Y. 1; People v. Palmer, 43 Hun, 401; Hopt v. People, 110 U.S. 575;People v. Bush, 68 Cal. 630; Foster v. State, 70 Miss. 763. )
Hence I conclude that the conviction in this case was not in conformity with the law of the land and there should be a new trial.
PARKER, Ch. J., GRAY, MARTIN and VANN, JJ., concur with HAIGHT, J., for affirmance; BARTLETT, J., concurs with O'BRIEN, J., for reversal.
Judgment and conviction affirmed. *Page 302