[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
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[paragraph continued from previous page] repealed by the act of Congress of July, 1902, providing immunity from second jeopardy for the same criminal offense.
This conclusion renders it unnecessary to consider, if the question was presented in this case, whether the accused was entitled to the right of a trial by jury.
Judgment reversed and prisoner discharged.
Mr. Justice Holmes, with whom concurred Mr. Justice White and Mr. Justice McKenna, dissenting.
I regret that I am unable to agree with the decision of the majority of the court. The case is of great importance, not only in its immediate bearing upon the administration of justice in the Philippines, but, since the words used in the Act of Congress are also in the Constitution, even more because the decision necessarily will carry with it an interpretation of the latter instrument. If, as is possible, the constitutional prohibition should be extended to misdemeanors, Ex parte Lange, 18 Wall. 163, 173, we shall have fastened upon the country a doctrine covering the whole criminal law, which, it seems to me, will have serious and evil consequences. At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny. But I do not stop to consider or to state the consequences in detail, as such considerations are not supposed to be entertained by judges, except as inclining them to one of two interpretations, or as a tacit last resort in case of doubt. It is more pertinent to observe that it seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case. It has been decided by this court that he may be tried a second time, even for his life, if the jury (p.135)disagree, United States v. Perez, 9 Wheat. 579; see Simmons v. United States, 142 U.S. 148; Logan v. United States, 144 U.S. 263; Thompson v. United States, 155 U.S. 271, or notwithstanding their agreement and verdict, if the verdict is set aside on the prisoner's exceptions for error in the trial. Hopt v. People, 104 U.S. 631, 635; 110 U.S. 574; 114 U.S. 488, 492; 120 U.S. 430, 442; United States v. Ball, 163 U.S. 662, 672. He even may be tried on a new indictment if the judgment on the first is arrested upon motion. Ex parte Lange, 18 Wall. 163, 174; 1 Bish. Crim. Law (5th ed.), § 998. I may refer further to the opinions of Kent and Curtis in People v. Olcott, 2 Johns. Cas. 301; S. C., 2 Day, 507, n.; United States v. Morris, 1 Curtis, 23, and to the well-reasoned decision in State v. Lee, 65 Connecticut, 265.
If a statute should give the right to take exceptions to the Government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm. It cannot matter that the prisoner procures the second trial. In a capital case, like Hopt v. People, a man cannot waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rights. Thompson v. Utah, 170 U.S. 343, 353, 354. Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error, unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.
It might be said that when the prisoner takes exceptions he only is trying to get rid of a jeopardy that already exists--that so far as the verdict is in his favor, as when he is found guilty of manslaughter upon an indictment for murder, according to some decisions he will keep it and can be retried only for the less offense, so that the jeopardy only is continued (p.136)to the extent that it already has been determined against him, and is continued with a chance of escape. I believe the decisions referred to to be wrong, but, assuming them to be right, we must consider his position at the moment when his exceptions are sustained. The first verdict has been set aside. The jeopardy created by that is at an end, and the question is what shall be done with the prisoner. Since at that moment he no longer is in jeopardy from the first verdict, if a second trial in the same case is a second jeopardy even as to the less offense, he has a right to go free. In view of these difficulties it has been argued that on principle he has that right if a mistake of law is committed at the first trial. 1 Bish. Crim. Law (5th ed.), §§ 999, 1047. But even Mr. Bishop admits that the decisions are otherwise, and the point is settled in this court by the cases cited above. That fetish happily being destroyed, the necessary alternative is that the Constitution permits a second trial in the same case. The reason, however, is not the fiction that a man is not in jeopardy in case of a misdirection, for it must be admitted that he is in jeopardy, even when the error is patent on the face of the record, as when he is tried on a defective indictment, if judgment is not arrested. United States v. Ball, 163 U.S. 662. Moreover, if the fiction were true, it would be equally true when the misdirection was in favor of the prisoner. The reason, I submit, is that there can be but one jeopardy in one case. I have seen no other, except the suggestion of waiver, and that I think cannot stand.
If what I have said so far is correct, no additional argument is necessary to show that a statute may authorize an appeal by the Government from the decision by a magistrate to a higher court, as well as an appeal by the prisoner. The latter is every day practice, yet there is no doubt that the prisoner is in jeopardy at the trial before the magistrate, and that a conviction or acquittal not appealed from would be a bar to a second prosecution. That is what was decided, and it is all that was decided or intimated, relevant to this case, in Wemyss (p.137)v. Hopkins, L. R. 10 Q. B. 378. For the reasons which I have stated already, a second trial in the same case must be regarded as only a continuation of the jeopardy which began with the trial below.
Mr. Justice Brown dissenting.
Under our Anglo-Saxon system of jurisprudence I have always supposed that a verdict of acquittal upon a valid indictment terminated the jeopardy, that no further proceedings for a review could be taken either in the same or in an appellate court, and that it was extremely doubtful whether even Congress could constitutionally authorize such review.
Conceding all this, however, I think that in applying the principle to the Philippine Islands, Congress intended to use the words in the sense in which they had theretofore been understood in those Islands. By that law, in which trial by jury was unknown, the jeopardy did not terminate, if appeal were taken to the audiencia or Supreme Court, until that body had acted upon the case. The proceedings before the court of first instance were in all important cases reviewable by the Supreme Court upon appeal, which acted finally upon the case and terminated the jeopardy. This was evidently the view of the military commander in General Order, No. 58, and of the Philippine Commission in the act of August 10, 1901, (No. 194,) in both of which an appeal to the Supreme Court was contemplated, even after a judgment of acquittal. I think this also must have been the intention of Congress, particularly in view of sec. 9 of the Philippine act of July 1, 1902, which provided that "the Supreme Court and the courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided ... subject to the power of said government to change the practice and method of procedure." It seems to me impossible to suppose that Congress intended to place in the hands of a single judge the great and dangerous power of finally acquitting the most notorious criminals.
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