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[Cite as Kepner v. United States, 195 U.S. 100 (1904). NOTE: This decision concerns a period when the Philippine Islands were a U.S. territory and the extent to which Congress applied constitutional protections. A Manila lawyer was acquitted of embezzlement. An appeals court not only reversed the acquittal, but found the lawyer guilty. The Supreme Court decided this amounted to being tried twice for the same crime, and that Congress had applied the protection against double jeopardy. (P. 110) Being before the 14th amendment made any bill or rights protections applicable to state infringement, the government's arguement "that the first eight amendments to the Constitution do not operate upon the States" implies the second amendment was viewed as similar to other individual rights since it would be a logical absurdity to propose a protection of liberty could operate upon states to protect a state from infringing its own right by itself. (P. 108) Determing the extent to which Congress applied constitutional protections to the Philippine Territory, the Majority opinion noted it was "evident the intention of Congress to carry some at least of the essential principles of American constitutional jurisprudence to these islands and to engraft them upon the law of this people" (P. 121-122). Like so many other Supreme Court decisions, the "right of the people" to arms is listed among other rights which have always been treated as individual: "[The rights protected by the act] are the familiar language of the Bill of Rights, slightly changed in form, but not in substance, as found in the first nine amendments to the Constitution of the United States, with the omission of the provision preserving the right to trial by jury and the right of the people to bear arms, and adding the prohibition of the Thirteenth Amendment against slavery or involuntary servitude, ... bills of attainder and ex post facto laws. These principles ... were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty." (P. 123-124) Since the right to arms and the right to trial by jury were both withheld from the Philippine Territory, it is unlikely the ommission indicates they were considered state's rights. This becomes more apparent when the Tenth Amendment, explicitly a state's right, was also withheld but the Court did not to enumerate it as an exception. The Court made a similar statement a year later in Trono v. United States, 199 U.S. 521, 528 (1905).]

[Kepner v. U.S. continued
Return to pages 100-120 (Majority opinion).
Return to pages 121-124 (Majority opinion cont.).
Currently at pages 125-133 (Majority opinion cont.).
Proceed to pages 134-137 (Dissenting opinions).]

[paragraph continued from previous page] Murphy v. Ramsey, 114 U.S. 15; Mormon Church v. United States, 136 U.S. 1, 42, 43; Downes v. Bidwell, 182 U.S. 244; Hawaii v. Mankichi, 190 U.S. 197. This case does not call for a discussion of the limitations of such power, nor require determination of the question whether the jeopardy clause became the law of the islands after the ratification of the treaty without Congressional action, as the act of Congress made it the law of these possessions when the accused was tried and convicted.

It is argued that in the act of July 1, 1902, Congress recognized the jurisdiction of the Philippine courts in section 9 as follows:

"Sec. 9. That the Supreme Court and the courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided, and such additional jurisdiction as shall hereafter be prescribed by the government of said islands, subject to the power of said government to change the practice and method of procedure."

The argument is, that Congress intended to leave the right of appeal as provided by military order, No. 58, as amended by the commission, in full force.

But Congress, in section 5, had already specifically provided that no person should be put twice in jeopardy of punishment for the same offense. While section 9 recognizes the established jurisdiction of the courts of the islands, it was not intended to repeal the specific guaranty of section 5, which is direct legislation pertaining to the particular subject. It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. In re Rouse, Hazard & Co., 91 Fed. Rep. 96, 100, and cases therein cited; Townsend v. Little, 109 U.S. 504, 512.

In ascertaining the meaning of the phrase taken from the Bill of Rights it must be construed with reference to the common law from which it was taken. 1 Kent, Com. 336. United (p.126)States v. Wong Kim Ark, 169 U.S. 649, in which this court said:

"In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 144 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 624 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent's Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274."

At the common law, protection from second jeopardy for the same offense clearly included immunity from second prosecution where the court having jurisdiction had acquitted the accused of the offense. The rule is thus stated by Hawkins in his Pleas of the Crown, quoted by Mr. Justice Story in United States v. Gibert et al., 2 Sumner, 19, 39:

"The plea (says he) of autre fois acquit is grounded on this maxim, that a man shall not be brought into danger of his life for one and the same offence more than once. From whence it is generally taken by all our books, as an undoubted consequence, that where a man is once found not guilty, on an indictment or appeal, free from error, and well commenced before any court, which hath jurisdiction of the cause, he may by the common law, in all cases, plead such acquittal in bar of any subsequent indictment or appeal for the same crime."

In this court it was said by Mr. Justice Miller, in Ex parte Lange, 18 Wall. 163:

"The common law not only prohibited a second punishment for the same offence, but went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted."

And in as late a case as Wemyss v. Hopkins, L. R. 10 Q. B. 378, it was held that a conviction before a court of competent (p.127)jurisdiction, even without a jury, was a bar to a second prosecution.

In that case the appellant had been summarily convicted before a magistrate for negligently and by wilful misconduct driving a carriage against a horse ridden by the respondent, and was afterwards convicted on the same facts for unlawful assault. It was held that the first conviction was a bar to the second. In the course of the opinion it was said by Blackburn, J.:

"I think the fact that the appellant had been convicted by justices under one act of Parliament for what amounted to an assault is a bar to a conviction under another act of Parliament for the same assault. The defence does not arise on a plea of autre fois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in rem judicatum, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence. The only point raised is whether a defence in the nature of a plea of autre fois convict would extend to a conviction before two justices whose jurisdiction is created by statute. I think the fact that the jurisdiction of the justices is created by statute makes no difference. Where the conviction is by a court of competent jurisdiction it matters not whether the conviction is by a summary proceeding before justices or by trial before a jury."

In the same case it was said by Lush, J.: "I am also of opinion that the second conviction should be quashed, upon the ground that it violated a fundamental principle of law, that no person shall be prosecuted twice for the same offence. The act charged against the appellant on the first occasion was an assault upon the respondent while she was riding a horse on the highway, and it therefore became an offence for which the appellant might be punished under either of two (p.128)statutes. The appellant was prosecuted for the assault and convicted under one of the statutes, 3 and 4, Wm. IV, c. 50, § 78, and fined, and he therefore cannot be afterwards convicted again for the same act under the other statute."

It is true that some of the definitions given by the textbook writers, and found in the reports, limit jeopardy to a second prosecution after verdict by a jury; but the weight of authority, as well as decisions of this court, have sanctioned the rule that a person has been in jeopardy when he is regularly charged with a crime before a tribunal properly organized and competent to try him, certainly so after acquittal. Coleman v. Tennessee, 97 U.S. 509. Undoubtedly in those jurisdictions where a trial of one accused of crime can only be to a jury, and a verdict of acquittal or conviction must be by a jury, no legal jeopardy can attach until a jury has been called and charged with the deliverance of the accused. But, protection being against a second trial for the same offense, it is obvious that where one has been tried before a competent tribunal having jurisdiction he has been in jeopardy as much as he could have been in those tribunals where a jury is alone competent to convict or acquit. People v. Miner, 144 Illinois, 308; State v. Bowen, 45 Minnesota, 145; State v. Layne, 96 Tennessee, 668.

In United States v. Sanges, 144 U.S. 310, it was held that a writ of error did not lie in favor of the United States in a criminal case, Mr. Justice Gray said:

"From the time of Lord Hale to that of Chadwick's case, just cited, the text-books, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case; and that a judgment in his favor is final and conclusive. See 2 Hawk. c. 47, § 12; c. 50, §§ 10 et seq.; Bac. Ab. Trial, L. 9; Error, B; 1 Chit. Crim. Law, 657, 747; Stark. Crim. Pl. (2d ed.) 357, 367, 371; Archb. Crim. Pl. (12th Eng. and 6th Am. ed.) 177, 199.

"But whatever may have been, or may be, the law of (p.129)England upon that question, it is settled by an overwhelming weight of American authority that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law."

In the course of the opinion Justice Gray cites, among other cases, Com. v. Commings and Same v. McGinnis, opinion by Chief Justice Shaw, 3 Cush. 212. In Archbold Cr. Pl. & Pr. Pomeroy's ed. 199, it was said: "There is no instance of error being brought upon a judgment for a defendant after an acquittal."

That the learned justice could not have intended to intimate that a second prosecution could be allowed by statute after an acquittal of the offense is shown by the subsequent decision of this court in United States v. Ball, 163 U.S. 662, in which Mr. Justice Gray also delivered the opinion of the court. In that case an attempt was made to prosecute for the second time one Millard F. Ball, who had been acquitted upon a defective indictment, which had been held bad upon the proceedings in error prosecuted by others jointly indicted with Millard F. Ball, who had been convicted at the trial. The court below held Ball's plea of former jeopardy to be bad. But this court reversed the judgment, and in the course of the opinion it was said:

"The Constitution of the United States, in the Fifth Amendment, declares, 'nor shall any person be subject to be twice put in jeopardy of life or limb.' The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Commonwealth v. Peters, 12 Met. 387; 2 Hawk. P. C. (p.130)c. 35, § 3; 1 Bishop's Crim. Law, § 1028. But although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached. If the judgment is upon a verdict of guilty, and unreversed, it stands good and warrants the punishment of the defendant accordingly, and he could not be discharged by a writ of habeas corpus. Ex parte Parks, 93 U.S. 18. If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot. United States v. Sanges, 144 U.S. 310. But the fact that the judgment of a court having jurisdiction of the case is practically final affords no reason for allowing its validity and conclusiveness to be impugned in another case.... As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. United States v. Sanges, 144 U.S. 310; Commonwealth v. Tuck, 20 Pick. 356, 365; West v. State, 2 Zabriskie [22 N. J. Law], 212, 231; 1 Lead. Crim. Cas. 532."

It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not, as the court below held, against the peril of second punishment, but against being again tried for the same offense.

We are not here dealing with those statutes which give to the Government a right of review upon the steps merely preliminary to a trial and before the accused is legally put in jeopardy, as where a discharge is had upon motion to quash or a demurrer to the indictment is sustained before jeopardy (p.131)has attached. Such statutes have been quite generally sustained in jurisdictions which deny the right of second trial where a competent court has convicted or acquitted the accused. People v. Webb, 38 California, 467. Mr. Bishop, in his work upon Criminal Law, sums up the scope and authority of such statutes as follows:

"A legislative provision for the rehearing of criminal causes cannot be interpreted--or, at least, it cannot have force--to violate the constitutional rule under consideration, whatever be the words in which the provision is expressed. When, therefore, a defendant has been once in jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist on the subject. Such a statute will be interpreted with the Constitution, and be held to apply only to cases where it constitutionally may. And if it undertakes to give to the State the right of appeal, to retry the party charged, after acquittal, it is invalid. And so the writ of error, or the like, allowed to the State, can authorize the State to procure the reversal of erroneous proceedings and commence anew, only in those cases in which the first proceeding did not create legal jeopardy." 1 Bishop Criminal Law (5th ed.), § 1026.

The author's conclusion has support in the case of People v. Miner, 144 Illinois, 308, supra, wherein a statute giving an appeal when the accused had been acquitted before a competent tribunal, was held in violation of section 10, article 2, of the constitution of that State, providing that no person shall be put twice in jeopardy for the same offense. So in the case of People v. Webb, 38 California, 467, a statute undertaking to give the right of appeal to the people in criminal cases was held to be limited to the cases in which errors in the proceedings may occur before legal jeopardy has attached. In the course of a well-considered opinion it was said:

"The question thus presented is of most grave importance, and, so far as we are advised, has never been directly passed upon by this court; hence we have given it a most patient consideration, and after a careful examination of the authorities (p.132)as to the construction of similar provisions in the constitutions of other States, and the Constitution of the United States, we are entirely satisfied that this court has no authority in criminal cases, under our State constitution, to order a new trial of a defendant at the instance of the prosecution for mere errors in the ruling of the court during the progress of the trial after the jury have been charged with the case and have rendered a verdict of not guilty. No case has been called to our attention, and after a most diligent examination of authorities, we have not been able to find a single American case where a retrial has been ordered or sanctioned by an appellate court at the instance of the prosecution, after the defendant had once been put upon his trial for an alleged felony, upon a valid indictment before a competent court and jury and acquitted by the verdict of such jury; but we find a vast number of adjudications of the highest judicial tribunals of the different States and many of the Federal courts to the effect that no such retrial is authorized by the common law, and is directly interdicted by the Constitution of the United States, and also of most of the several States. The universal maxim of the common law of England, as Sir William Blackstone expresses it, 'that no man is to be brought into jeopardy of his life more than once for the same offence,' is embraced in article V of amendments to the Constitution of the United States, and in the constitutions of several States, in the following language: 'Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;' and in many other States the same principle is incorporated in the organic law, in language substantially the same as hereinbefore quoted from the constitution of this State. While the constitutions of some few States are destitute of this or any similar provision, other state constitutions, such as of New Hampshire, Rhode Island, New Jersey and Iowa, merely interdict a second trial for the same offence after acquittal."

The case of State v. Lee, 65 Connecticut, 265, in the reasoning of the court seems opposed to this view. But no reference (p.133)is made in the course of the opinion to any constitutional requirement in Connecticut as to double jeopardy. An examination of the constitution of that State and amendments as published in General Statutes of Connecticut Revision of 1902, discloses no provision upon the subject of jeopardy, and we conclude there is none.

The exceptional character of the decision in State v. Lee is stated by the learned editor of American State Reports in a note to the case as reported in 48 Am. St. Rep. 202, in the following language:

"This case, in its view of former jeopardy, stands out in bold relief against the commonly understood meaning of what constitutes once in jeopardy."

And further:

"The law almost universally prevalent is that a verdict of acquittal in a criminal case is final and conclusive, and that there can be no new trial of a criminal prosecution after an acquittal in it." People v. Corning, 2 N.Y. 9; 49 Am. Dec. 364, and note; 48 Am. St. Rep. 213, 214.

The Ball case, 163 U.S., supra, establishes that to try a man after a verdict of acquittal is to put him twice in jeopardy, although the verdict was not followed by judgment. That is practically the case under consideration, viewed in the most favorable aspect for the Government. The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense, if Congress used the terms as construed by this court in passing upon their meaning. We have no doubt that Congress must be held to have intended to have used these words in the well settled sense as declared and settled by the decisions of this court.

It follows that military order No. 58, as amended by act of the Philippine Commission, No. 194, in so far as it undertakes to permit an appeal by the government after acquittal, was [paragraph continues next page]

[Return to pages 100-120 (Majority opinion).
Return to pages 121-124 (Majority opinion cont.).
Currently at pages 125-133 (Majority opinion cont.).
Proceed to pages 134-137 (Dissenting opinions).]