constitution, being secured in his right to be confronted with the witnesses against him on his trial, such right is violated unless he be present at such a view.

For wise and proper reasons, and in pursuance of a good purpose, in certain instances, the trial court is authorized to send a jury try ing a criminal cause to "view the place in which the offense is charged to have been committed, or in which any other material fact occurred;" but the law which confers this authority does not declare that this may be done without the presence of the defendant and his counsel. It is impossible that a jury could go and view such a place without receiving some evidence through one of their senses, viz., that of sight.

In the case at bar there was a conflict in the evidence which had been submitted to the jury, between that given by witnesses for the defendant and that by Valentine, the principal witness for the people. There is little doubt that the order made for the view was for the reason that the court thought it necessary for the jury to determine, by looking at various physical objects, extending along a road for some distance, which was the true and reliable testimony as to the matters where this conflict existed. They went to the places designated in the order, and Valentine, the witness, pointed out and named to them the objects therein embraced. The jury viewed them all as they lay along the road, and therefrom must have determined which evidence, upon certain points, they deemed most worthy of belief. They thus received evidence in the absence of the judge, the defendant, and his counsel.

The order made by the court did not require the defendant to go and be present with his counsel at such view. Suppose that upon the trial, after the witnesses had testified as to the occurrences which transpired at the places named in the order, instead of making the order a photograph of all such places had been offered and allowed. by the court to go in evidence to the jury, in the absence of the defendant and his counsel, can it be successfully contended that the defendant could be debarred from claiming and having awarded him a new trial for manifest error? It is often most important for the defendant and his counsel to be able to perceive exactly what impression is being made upon the jury by any portion of the evidence given in on his trial; and it may frequently happen that it is within their power then to introduce other evidence which might tend to disabuse that body of a wrong impression, or the counsel might, by fair and legitimate argument, be able to convince them of the right view to be taken of such evidence. It is to insure to the defendant in all cases of such a nature a fair and impartial trial by a jury of his countrymen that the constitutional enactment was made the supreme law of the land.

The defendant objected to the order of view as made originally and as modified. He was not present when the jury inspected

the various places named in that order, and it is fair to presume that what they then and there saw tended to or did influence their verdict. This court, in the case of the People v. Green, 53 Cal. 60, where a similar order was made and action taken with the jury, used this language:

"The action of the court was opposed

*

to the principle which gives to a defendant the privilege of being confronted by the witnesses against him." Judge Cooley, in his work on Constitutional Limitations, (5th Ed.) § 319, says: "In cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment." And in note 1 of the section, supra, this is said: "In capital cases the accused stands upon all his rights, and waives nothing." Dempsey v. People, 47 Ill. 325; People v. McKay, 18 Johns. 217; Burley v. State, 1 Neb. 385. And further, as to the inability of a defendant to waive a constitutional right, see Work v. State, 2 Ohio St. 296; Cancemi v. People, 18 N. Y. 128; Wilson v. State, 16 Ark. 601; Bond v. State, 17 Ark. 290; Brown v. State, 16 Ind. 496.

In the case of State v. Bertin, 24 La. Ann. 47, similar to the one in hand, (except that there was no statute of the state of Louisiana authorizing a view of places,) this language occurs:

"Concede that in the absence both of the accused and the judge (for the judge did not accompany the expedition) the witness obeyed these instructions to the letter, which were as follows: To make no explanations, but to confine himself to pointing out appearances as described in said diagram,'—it would result merely that the witness gave testimony on the premises, out of court and in the absence of the accused; gives testimony, namely, by signs, and it needs no argument to prove that the effect of such pointing out in dumb show is as potent with the jury as if the verification of the diagram had been enforced with a multitude of words. The object of law is the doing of real justice; it is but natural and proper, therefore, that criminal jurisprudence should protect the accused person by numerous safeguards, and among these is the rule that in general every proceeding of his trial shall take place in his presence; for, peradventure, if he be present he may, at any moment, by a question, a suggestion, an argument, or even a glance, confound his accusers, vindicate his innocence, or at least mitigate his punishment. Especially is this proper at the taking of testimony against him, and therefore in this state as in many others of this Union, it is provided by the constitution that the accused shall have the right to meet the witnesses against him face to face."

In Gaunt, Ark. Dig. §§ 1927, 1928, the statute authorizing a view in such a case as the one we are now discussing is almost in totidem verbis as our own section 1119 of the Penal Code. And in the case of Benton v. State, 30 Ark. 350, it is said:

"The view of the place where the crime is alleged to have been committed, by the jury, is part of the trial, and may be an important step in the trial, and the presence of the prisoner at the view, in a case involving life or liberty, that he may have an opportunity to observe the conduct of the jury, and whatever occurs there, might be of the utmost consequence to him. The judge who presides at the trial and hears the evidence must determine

whether or not a view is necessary; and if, in his discretion, he deems it necessary to order a view to be made, it would be better and safer for him to accompany the jury, if convenient, to see that nothing improper occurs at the view. If not convenient, he may appoint a person to show the jury the place to be viewed, sworn as directed by statute. If the jurors are familiar with the place, they may be conducted to it by a sworn bailiff in charge of them, and there could be no necessity for the appointment of another person to show them the place."

At page 349, same case, this is said:

"But though no witnesses are examined at the view, yet the jurors, from their observation of the place and its surroundings, may receive a kind of evidence from mute things, which cannot be brought into court to confront the accused, and are in their nature incapable of cross-examination."

By section 1043 of our Penal Code it is provided that the defendant must be present in person when on trial for a felony. In Arkansas a statute of the same kind was in force, and the supreme court of that state said of it that it was "declaratory and affirmatory of the common law, which would not allow any proceeding affecting life or liberty to be had in the absence of the prisoner, and when any step was to be taken in the cause the prisoner was to be present personally, lest in so important a matter he should be prejudiced. This care of the law for his safety was extended through the whole trial, from his arraignment to his final conviction or acquittal." Sneed v. State, 5 Ark. 432; Cole v. State, 10 Ark. 318; Sweeden v. State, 19 Ark. 209.

We are of the opinion that it is not intended by section 1119, Pen. Code, that a view to be taken by the jury of any place or places contemplated by that statute should ever be ordered by the court, or take place, unless in the presence of the defendant; and, in addition to the authorities above cited, the following bear out the correctness of that rule. Whart. Crim. Pr. & Pl. (8th Ed.) § 707; State v. Sanders, 68 Mo. 202; Smith v. State, 42 Tex. 444; Carroll v. State, 5 Neb. 31; Eastwood v. People, 3 Parker, Crim. R. 25.

The judgment and order should be reversed, and cause remanded for a new trial.

I concur: BELCHER, C. C.

SEARLS, C. I concur in the conclusion reached in the foregoing opinion, and hold that a defendant in a criminal case amounting to felony has a right to be tried in the presence of the court, of which the judge is an integral part; to be represented in every step of the case by counsel; to be personally present and be confronted by the witnesses against him; and section 1119 of the Penal Code, so far as it is in conflict with, or in any manner abridges, these rights or any of them, is unconstitutional and void.

THE COURT. For reasons contained in the foregoing opinions the judgment and order are reversed, and the cause is remanded for a new trial.

Ross and SHARPSTEIN, JJ., agree with the views presented in the opinion of Commissioner FOOTE.

THORNTON and MOKINSTRY, JJ., concur also in the opinion of Commissioner SEARLS.

MYRICK, J. I do not concur in the judgment, or in the reasons therefor.

MCKEE, J. I dissent. Section 1119 Pen. Code; People v. Bonney, 19 Cal. 427.

NOTE.

For a full discussion of the question of abuse by and misconduct of counsel in the argument of a case to the jury, see Petite v. People, (Colo.) 9 Pac. Rep. 622, and note, 627, 628, and State v. McCool, (Kan.) 9 Pac. Rep. 745.

A judgment will not be reversed for misconduct of counsel in argument, unless it was such as to prejudice the substantial rights of the accused. Shular v. State, (Ind.) 4 N. E. Rep. 870.

It is only where the misconduct of counsel is of such a material character as to make it probable that the jury were misled that there can be a reversal therefor. Boyle v. State, (Ind.) 5 N. E. Rep. 203.

It is improper for a prosecuting attorney to make a statement to the jury of a fact as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to a material issue in the case, and if the accused is prejudiced thereby, the conviction may be set aside. People v. Dane, (Mich.) 26 N. W. Rep. 781.

(68 Cal. 561)

DILLON, Adm'r, etc., v. CENTER and others. (No. 8,696.)

Filed February 25, 1886.

1. EJECTMENT-DEFENDANT'S POSSESSION TO BE SHOWN.

In an action of ejectment it is indispensable to a recovery by the plaintiff that it should appear that the defendant was, at the commencement of the action, in the possession of some part of the land sued for.

2. SAME-GENERAL DENIAL-ADVERSE POSSESSION.

In an action of ejectment, an answer containing a general denial puts in issue the alleged possession of the defendant, and if, in addition, the defendant sets up title by adverse possession, the admission of possession contained in such special defense must be confined to that defense.

8. SAME-NONSUIT AS TO PORTION OF DEMANDED PREMISES.

In an action of ejectment for the possession of several distinct pieces of land, the defendant may have a nonsuit as to such portions of the demanded premises as the plaintiff's evidence shows were in his own possession at the time of the commencement of the action.

4. SAME-ADVERSE POSSESSION-LANDLORD'S DISCLAIMER AS EVIDENCE AGAINST TENANT.

Where, in ejectment, the defendant sets up title in his landlord acquired by adverse possession, the evidence of a disclaimer by the landlord in a prior ejectment suit for the same premises against the then possessor is admissible in such action.

Commissioners' decision.

Department 2. Appeal from superior court, county of Santa Clara. S. O. Houghton, for appellant.

T. H. Laine, for respondents.

BELCHER, C. C. This is an action of ejectment to recover possession of lot 1 of the N. W., and lots 2 and 3 of the N. E., of a cer

tain section of land in Santa Clara county. In the complaint it is alleged that W. H. Dillon, plaintiff's intestate, died in April, 1877, and at the time of his death was the owner in fee and entitled to the possession of the premises described; that the plaintiff, as adminis tratrix of his estate, took possession of the said premises in January, 1879, and continued to occupy the same until the seventh day of January, 1880, when she was ousted and ejected therefrom by the defendants. The defendant Alexander Center alone appeared. By his answer he denied all the allegations of the complaint, and then alleged that he, and those through and under whom he claimed, had had and held the actual possession of the lands and premises described in the complaint, and every part and parcel thereof, continuously, exclusively, and adversely to all the world for the five years next preceding the commencement of the action; and he further alleged that the plaintiff's cause of action was barred by the provisions of section 318 of the Code of Civil Procedure.

The case was tried by the court and judgment rendered in favor of the plaintiff, for the possession of the three lots described in the complaint, and for damages and costs. The appeal is from the judg ment and an order denying a new trial.

When the plaintiff rested her case the defendant moved for a nonsuit as to lots 1 and 2 upon the ground that it appeared from the plaintiff's testimony that she was in possession of those lots when the action was commenced, and it did not appear that defendant ever had possession of any part of them. The motion was denied upon. the ground that a nonsuit could not be granted as to a part of the demanded premises. We think the motion might and should have been granted. It is indispensable to a recovery in ejectment that it should appear that the defendant was, at the commencment of the action, in the possession of some part of the land sued for. The general denial contained in the answer put in issue the alleged possession of defendant, and the admission of possession contained in the special defense must be confined to that defense. Miller v. Chandler, 59 Cal. 540. The lots were severable and the only contest was as to a part of lot 3. It was unnecessary, therefore, to include in the action lots 1 and 2, and a judgment that the plaintiff recover the possession of those lots might be harmful to the defendant if an action should be commenced to recover rents and profits for them. 2 Greenl. Ev. § 333.

As above stated, the only real contest was in reference to about 16 acres of lot 3, and as to this piece it was claimed that the plaintiff's right of action was barred by the statute of limitations. It appeared from the evidence that W. H. Dillon became the owner of the three lots described in the complaint, in December, 1875. To sustain his claim under the statute of limitations the defendant then proved that in November, 1871, one John Center received a deed for a tract of about 300 acres of land known as the "Scott Place," and embracing the 16-acre parcel of lot 3; that the whole tract was then inclosed; v.10p.no.3-12