
    Blythe v. The State.
    
      Homicide — Jury may view scene of felony — Presence of accused — Not error when accused refuses to attend.
    
    It is not error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view.
    (Decided April 22, 1890.)
    Motion for leave to file a petition in error to the Circuit Court of Hamilton county.
    
      Hart Pugh, for plaintiff in error.
    
      John O. Schwartz, Pros. Atty., for defendant in error.
    The plaintiff in error Charles Blythe, was indicted and put upon his trial in the Court of Common Pleas of Hamilton county on a charge of murder in the first degree. After the jury to try him, had been empanneled and sworn, the prosecuting attorney moved the court to send them, under the charge of the sheriff, to view the premises where the homicide had been committed. To this the plaintiff in error objected, which objection the court overruled, directed the view to be made, and gave to the plaintiff in error permission to accompany the jury, if he desired to do so. To this action of the court, he at the time excepted. Thereupon, the jury in charge of the sheriff viewed the premises, the plaintiff in error, by advice of counsel declining to accompany them. This action of the court he now asks to be held error to his prejudice. .
   By the Court.

A view of the place where the homicide occurred is expressly authorized by section 7283, Revised Statutes, which makes no provision for the defendant on trial to accompany the jury when it is made. Section 7301 Revised Statutes, prescribes that, except in cases of misdemeanors, no one charged with an offense shall be tried in his absence.

This section does not require the actual presence of the accused in court at all times during his trial, but prescribes that one out of the jurisdiction or control of the court, cannot be tried for a felony, and notwithstanding this section (7301 Revised Statutes), one on trial for a felony and not in actual custody may pass in and out of the court room, and remain absent for considerable periods of time, without rendering the progress of the trial during his absence erroneous. Therefore, if a view such as is authorized by section 7283 Revised' Statutes, be a part of the trial within the meaning of section 7301 Revised Statutes, yet, as the court of common pleas expressly granted to plaintiff in error, permission to accompany the jury when the view was taken, which privilege, under advice of counsel he declined to accept, he must be deemed to have voluntarily absented himself, and thereby waived his right and privilege to be present when the view was taken. The court of common pleas, having granted him the privilege to accompany the jury, was not bound to compel him to accept it.

Judgment affirmed.  