Page:Harvard Law Review Volume 12.djvu/232

212 212 HARVARD LAW RE VIE W. Court of Appeals overruled this objection (O'Brien and Bartlett, JJ., dis- senting). The possibihty of the prisoner waiving his rights was passed over, and the decision was rested on the ground that he had, as a matter of fact, been present during the whole proceeding, that the view was not a part of the trial, and " that the knowledge acquired by the jury in in- specting the premises was to enable them to better understand the evi- dence and not to obtain original testimony." The weight of authorities seems against this position : People v. Palmer, 43 Hun, 40! ; People v. Bush, 68 Cal. 623 ; and the weight of reason is also opposed. In this particular case the absence of the accused does not seem to have influenced the decision. But under different circumstances it might well prove of great importance to have the opportunity of observing the con- duct and actions of the jury when taking the view. Suppose, for instance, between the murder and the trial the premises had accidentally become changed in appearance, the jury noting the discrepancy between the tes- timony and the facts might draw conclusions of vital moment against the defendant's witnesses. If it be argued that the jury are forbidden by the court to draw conclusions from what they see, the answer is that it is impossible to enforce obedience. Throughout the whole trial the jury must necessarily be comparing the testimony they hear with what they have seen. It is noteworthy, moreover, that when handwriting, blood- stains, or footprints are shown the jury, it is called the production of real evidence, and no one contends that examination by the jury of these matters is not a part of the trial. A " view " is hard to distinguish from this so-called real evidence. Giving the juryman a view of the prem- ises is something more than giving him a mere instrument, like an eye- glass or an ear-trumpet. It is furnishing him with a basis for inference which will unavoidably be utilized. Hard though it seems to nullify a whole proceeding for such a small reason, yet it is better so, than to set a precedent of disregarding the rights of persons accused of crime. When is a Ship a Total Loss? — It remained for a late decision of the House of Lords to declare for the first time that a sunken ship is to be considered for the purposes of insurance as a total loss. . The Blair- more Co. v. Macredie, 1898, App. Cas. 593. Doubtless no marine insurer was ever so bold as to contend otherwise. In that case the ship " Blair- more," insured for ;^i5,ooo, sunk in a squall in San Francisco Harbor. The owners declared her a total loss, and formally abandoned her. There- upon the underwriters raised her at an expense of ;,^9,5oo, estimated that she could now be repaired for ;!f^ 1,500, and offered the ship and that sum to the owners. The owners refused, and brought suit for the full amount of the insurance. They contended that the ship was, and remained, a total loss. The underwriters practically conceded that the loss was once total, but claimed that when the ship was raised the loss became a partial one. The case was finally carried to the House of Lords. Their Lordships differed much in their reasons for their decisions, but the result was that the owners succeeded. A ship is considered a constructive total loss under circumstances when a prudent uninsured owner would abandon her. Adams v. Mackenzie, 13 C. B. N. s. 442. Now in the principal case it is seen that a prudent owner would have abandoned the sunken but not the raised ship. The problem presented, then, was whether the rights of the