[942] 317 U.S. 213, 216 (1942).
[943] 324 U.S. 760 (1945). Certiorari was denied, however, for the reason that the State court's refusal to issue the writ of habeas corpus was based upon an adequate nonfederal ground.
[944] Schwab v. Berggren, 143 U.S. 442, 448 (1802).—This statement is a dictum, however; for the issue presented by the accused's petition for a writ of habeas corpus was that the State appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the petitioner and his counsel and without notice to either as to the date of its decision. Insofar as a right to be present exists, its application, the Supreme Court maintained, is limited to courts of original jurisdiction trying criminal cases.
[945] Howard v. Kentucky, 200 U.S. 164 (1906).
[946] 201 U.S. 123, 130 (1906).
[947] 237 U.S. 309, 343 (1915).
[948] Snyder v. Massachusetts, 291 U.S. 97 (1934).
[949] Ibid. 105, 106, 107, 108, 118.—In a dissent, in which Justices Brandeis, Butler, and Sutherland concurred, Justice Roberts insisted that "it * * * [was] not a matter of assumption but a certainty * * * [that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." Even if "the result would have been the same had the [accused] been present, still the denial of the constitutional right ought not to be condoned. * * * Nor ought this Court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused is to beg the constitutional question involved. * * * The guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."—Ibid. 130-131, 134, 136-137.
[950] 337 U.S. 241 (1949).
[951] Ibid. 246-247, 249-250.—Dissenting, Justice Murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"—Ibid. 253. Justice Rutledge dissented without an opinion.