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[Cite as Trono v. United States, 199 U.S. 521 (1905). NOTE: This decision concerns the protection against double jeopardy during a period when the Philippine Islands were a U.S. territory. Three men were acquitted of murder and convicted of assault. On appeal the assault conviction was reversed and they were convicted of murder which they had been acquitted of. The Supreme Court decided this did not violate the protection of double jeopardy because the accused appealed and asked for review. The Majority opinion noted concerning the act applying the Bill of Rights to the Territory: "The whole language is substantially taken from the Bill of Rights set forth in the amendments to the Constitution of the United States, omitting the provisions in regard to the right of trial by jury and the right of the people to bear arms, and containing the prohibition of the 13th Amendment, and also prohibiting the passage of bills of attainder and ex post facto laws." (P. 528) 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 comment a year earlier in Kepner v. United States, 195 U.S. 100, 123-124 (1904).]



No. 34. Argued October 31, 1905.--Decided December 4, 1905.

Plaintiffs in error were tried for murder in the court of first instance in the Philippine Islands and were acquitted of the crime of murder and convicted of the crime of assault and were sentenced to six months' imprisonment and a fine. They appealed to the Supreme Court of the Philippine Islands, which reversed that judgment and found them guilty of homicide and sentenced them to various terms from eight to fourteen years' imprisonment and a fine. On a writ of error seeking to review the judgment on the ground that the action of the Supreme Court of the Philippine Islands amounted to putting the accused in second jeopardy, Held, that:

There is a vital difference between an attempt of the Government to review a verdict of acquittal in the court of first instance, and the action of the accused in himself appealing from a judgment which convicts him of one offense while acquitting him from the higher one charged in the indictment. Kepner v. United States, 195 U.S. 100, distinguished.

Where upon the indictment of a greater offense the one accused is found not guilty thereof but guilty of a lower offense included therein, and upon appeal from that judgment a new trial is granted by the appellate court, the accused can, on the new trial, be tried for the greater offense in the indictment, and such new trial does not amount to placing him in jeopardy a second time for the same offense within the meaning of the Federal Constitution or of the provisions in that regard in the Philippine Act of July 1, 1902, 32 Stat. 691.

The appeal of the accused in such case amounts to a waiver to the plea of second jeopardy by asking that he be again tried for the offense for which he has once been convicted and if that request be granted he must take the burden with the benefit and go back for the new trial upon the whole case.

Quaere, whether the constitutional provision against second jeopardy was intended to apply to a judgment under these circumstances.

In reversing the lower court and itself convicting the accused on such appeal, the Supreme Court of the Philippine Islands acted within its powers, and in ordinary procedure in the courts of that country under the act of July 1, 1902.

The plaintiffs in error were proceeded against in the court (p.522)of first instance of the province of Bulacan, Philippine Islands, upon a complaint accusing them of causing the death of Benito Perez "with great cruelty and evident premeditation ... by means of blows given with the butts of guns, they cooperating one with the other." In other words, the accused were complained of as guilty of murder in the first degree.

They were tried in the court above mentioned and were acquitted of the crime of murder and convicted of the crime of assault, which is included in the crime of murder charged in the complaint, and they were therefore sentenced by the court to suffer a penalty of six months' imprisonment and to pay a certain sum to the heirs of Perez, with subsidiary imprisonment in case of insolvency.

All three of the accused appealed to the Supreme Court of the Philippine Islands from the judgment and sentence of the trial court. The Supreme Court, having heard the case, reversed the judgment of the court of first instance and convicted the accused of the crime of homicide (in substance, murder in the second degree), which is included in and is a lower degree of the crime charged in the complaint, but is a higher degree of crime than that of which the accused were convicted in the court below. Two of them (Angeles and Trono) were sentenced to fourteen years, eight months and one day, and Natividad to imprisonment for eight years and one day, and all three to the payment of an indemnity to the heirs of the deceased.

The accused have brought the case here by writ of error to the Supreme Court of the Philippine Islands, for the purpose of reviewing the judgment of that court.

Mr. Aldis B. Browne, with whom Mr. Alexander Britton and Mr. Maurice Kelly were on the brief, for plaintiffs in error:

In convicting plaintiffs in error of homicide after their acquittal thereof by the court of first instance the Supreme Court of the Philippine Islands placed them for the same offense twice in jeopardy, in violation of the Declaration of Rights in section 5 of Civil Government Act of July 1, 1902, 32 Stat. 691; Kepner (p.523)v. United States, 195 U.S. 100; United States v. Ball, 163 U.S. 662.

Jeopardy terminates with an acquittal by the trial court, and no further proceedings may be had in the appellate tribunal without placing the accused under a second jeopardy. This principle is now settled law and as such incorporated into the criminal jurisprudence of the Philippine Islands. When the plaintiffs in error in this case were acquitted by the court of first instance of the charge of homicide their jeopardy was ended, and they could not again be tried for that offense without being put twice in jeopardy therefor.

By appeal from the conviction of assault the accused did not waive their immunity from second jeopardy on the charge of homicide. Hopt v. Utah, 110 U.S. 574; Thompson v. Utah, 170 U.S. 343, are directly opposed to Harding v. United States, 1 Wall., Jr., 127, Fed. Cas. No. 15,301.

In practically all jurisdictions where the common law prevails it has been uniformly held that the accused cannot waive his immunity from second jeopardy of punishment for the greater felony by appeal from conviction of a lesser. The question has been raised in many States where the common law prevails, and, we believe, has always been answered in the negative, except in Ohio and South Carolina. People v. Dowling, 84 N.Y. 478; Guenther v. People, 24 N.Y. 100; People v. Cignarale, 110 N.Y. 23, 30; Stuart v. Commonwealth, 28 Gratt. 950; State v. Martin, 30 Wisconsin, 216; State v. Hills, 30 Wisconsin, 416; State v. Belden, 33 Wisconsin, 120; Slaughter v. State, 6 Humph. 410; Brennan v. People, 15 Illinois, 511; Barnett v. People, 54 Illinois, 325; Sipple v. People, 10 Bradwell, 144; Morris v. State, 8 S. & M. (Miss.) 762; Johnson v. State, 29 Arkansas, 31; State v. Tweedy, 11 Iowa, 350; State v. Ross, 29 Missouri, 32; State v. Kattleman, 35 Missouri, 105; Johnson v. State, 27 Florida, 245; Golding v. State, 31 Florida, 262; Dennison v. State, 31 La. Ann. 847; State v. Murphy, 13 Washington, 229; Bell v. State, 48 Alabama, 684; Berry v. State, 65 Alabama, 163; Brown v. United States, 52 S.W. Rep. 56; Jones (p.524)v. State, 13 Texas, 168; State v. Stevens, 29 Oregon, 85; People v. Knapp, 26 Michigan, 112, 113; People v. Comstock, 55 Michigan, 405, 407; George v. State, 59 Nebraska, 163; State v. Kettle, 2 Tyler (Vt.), 472.

In several States there are statutory provisions permitting the retrial for the greater offense, but no such statute exists in the Philippine Islands; see 270, Kentucky Code of Practice; Rev. Stat. Indiana, 141; 274, Code of Kansas. On the strength of these statutes the courts of these States have held that where a new trial is granted the accused may be again tried for the greater offense of which he was acquitted on the first trial. Commonwealth v. Arnold, 83 Kentucky, 1; Morris v. State, 1 Black, 37; Veatch v. State, 60 Indiana, 291; State v. McCord, 8 Kansas, 232.

In California the court held that, on new trial, the accused cannot again be prosecuted for any crime of which he was acquitted on the first trial without violating the second jeopardy clause of the state constitution. People v. Gilmore, 4 California, 376; People v. Gordon, 99 California, 227; see also Waller v. State, 104 Georgia, 505. Against these cases are some in Ohio and South Carolina holding that the appeal amounts to a waiver.

These cases show that in Alabama, Arkansas, California, Florida, Illinois, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nebraska, New York, Oregon, Tennessee, Texas, Vermont, Virginia, Washington and Wisconsin, and in the Indian Territory the rule is the accused cannot waive his immunity from second jeopardy, and on new trial he can only be prosecuted for the crime of which he stood convicted. In Kentucky, Indiana and Kansas there is a different rule based on statutory provisions, to the effect that "a new trial places the parties in the same position as if no trial had been had." The California courts, however, hold, on a similar statutory provision, that there can be no second prosecution for the offense of which the defendant was acquitted on first trial. In Georgia and Missouri the common-law rule has been changed by the constitution, and in Ohio (p.525)and South Carolina the courts have adopted a different doctrine from that prevailing at the common law. Thus, nineteen States and the Indian Territory have held that there can be no waiver. In Ohio and South Carolina the courts have set aside the common-law rule. In the five remaining States the statutory or constitutional provisions have expressly changed the rule where new trial is granted on defendant's motion.

The English courts have gone so far in support of the maxim that no man ought to be twice brought in danger of his life for one and the same crime that they have always refused a new trial in cases of felony where the indictment is valid. Rex v. Mawbey, 6 T. R. 619; Regina v. Bertrand, L. R. 1 P. C. 520. See United States v. Gibert, 2 Sumn. 19; People v. Comstock, 8 Wend. 549.

The Solicitor General for the United States:

The right of trial by jury is not involved in this case, Dorr v. United States, 195 U.S. 138, 148; nor the right of the Government in accordance with the Spanish procedure to appeal from a judgment of acquittal. That claim of the prosecuting authority in the Philippine Islands is adjudged to be a violation against the guarantee of second jeopardy. Kepner v. United States, 195 U.S. 100. The only issue here is a different and distinct aspect of the second jeopardy question. The sole question is whether the Supreme Court of the Philippines, by adjudging the defendants guilty of homicide upon the hearing of their appeal from the judgment of the court of first instance which found them guilty of assault only, placed them in jeopardy a second time for the crime of homicide, in violation of the second jeopardy provisions of the act of July 1, 1902, 32 Stat. 692.

The right of appeal from courts of first instance to the Supreme Court or Audiencia was conferred by 43, G. O. No. 58, December 18, 1899, 1 Laws Phil. Com., 1087, 32, 42, 43, 50. The jurisdiction of courts of first instance to try offenses of the character involved here is conferred by the act of the Philippine (p.526)Commission of June 11, 1901, 56, No. 136, 1 Laws Phil. Com., 252. That act abolished the existing Audiencia or Supreme Court, and substituted the present Supreme Court of the Philippines, 39, providing for appeals to that court from judgments of courts of first instance, 18. Under these provisions of law and the decisions thereon the Supreme Court has jurisdiction on appeal in criminal cases identical with that of the old Audiencia, and has authority to review the whole case, both upon the facts and the law. United States v. Atienza, 1 Philippine Rep. 736; United States v. Abijan, 1 Philippine Rep. 83. These decisions are in harmony with those of this court to the effect that in general an appeal removes a cause entirely, subjecting the law and facts to a review and retrial. United States v. Goodwin, 7 Cr. 108; Dower v. Richards, 151 U.S. 658.

An appeal in a criminal case is not a necessary element of due process of law, but is merely a privilege accorded the accused by statute, and any one who avails of the privilege assents thereby to the conditions attached to it. McKane v. Durston, 153 U.S. 684; Andrews v. Swartz, 156 U.S. 272; Kohl v. Lehlback, 160 U.S. 293; Murphy v. Massachusetts, 177 U.S. 155. The state authorities are in full accord. Commonwealth v. Arnold, 83 Kentucky, 1; Briggs v. Commonwealth, 82 Virginia, 554; State v. Hart, 33 Kansas, 218, 222; People v. Palmer, 109 N.Y. 413.

As to the right to increase the punishment, under Spanish procedure in the Philippines, as continued by us, if an accused were convicted by the trial court, the Audiencia upon review might raise or lower his punishment or acquit him altogether. United States v. Kepner, 1 Philippine Rep. 397. If the defendants felt aggrieved at the decision, and could produce new evidence, a trial de novo before the court of first instance was open to them under the law, 42, G. O. 58. By taking their appeal defendants assented to the conditions upon which it was granted and thereby waived any right to plead the judgment of the court of first instance as a bar to their conviction for a higher offense by the Supreme Court upon appeal.(p.527)

This Philippine proceeding is not a review on alleged errors of law alone, or an ordinary motion for a new trial, which in this country, if granted, would result in sending the case back to another jury for a new trial. This appeal of defendants is itself a new trial on their own motion, and is properly submitted as such to the appellate court.

When in any criminal case in which a single offense is charged a verdict of guilty is set aside or reversed and a new trial granted, the effect is to annul the judgment below as effectually as if there had been no trial. United States v. Keen, 26 Fed. Cas. 686; 4 Blackstone, 336, 337; Lockwood v. Jones, 7 Connecticut, 436; Zaleski v. Clark, 45 Connecticut, 397; Rassmussen v. State, 63 Wisconsin, 1; Bailey v. State, 29 Georgia, 579; Regina v. Drury, 3 Cox Crim. Cas. 544.

On the main question, whether the accused was twice in jeopardy, the state courts are not in harmony. But the sound view is, despite adverse authorities, that a new trial on defendant's motion wipes out the previous determination and leaves no former jeopardy against the constitutional inhibition. United States v. Harding, 26 Fed. Cas. 131; United States v. Keen, 26 Fed. Cas. 686; People v. Palmer, 109 N.Y. 413; State v. Bradley, 67 Vermont, 465; State v. Behmer, 20 Ohio St. 572; Commonwealth v. Arnold, 83 Kentucky, 1; Bailey v. State, 26 Georgia, 579; Small v. State, 63 Georgia, 386; State v. Terreso, 56 Kansas, 126; Kansas v. McCord, 8 Kansas, 232; Veatch v. State, 60 Indiana, 291; Bohanan v. State, 18 Nebraska, 57. The reasoning of the numerous cases which follow the contrary doctrine is not satisfactory. That there is no implied acquittal which is conclusive is the better rule, and so far as any rule at all has been laid down by Federal judges, they take this ground.

If constitutions mean what is claimed, statutes providing that a new trial annuls the previous judgment are invalid. But Mr. Justice Miller in Kring v. Missouri, 107 U.S. 221, held that a State could abolish by constitutional amendment or by legislation the rule of implied acquittal of a higher offense [paragraph continues next page]

[Currently at pages 521-527 (Majority opinion).
Proceed to page 528 (Majority opinion cont.).
Proceed to pages 529-534 (Majority opinion cont.).
Proceed to pages 535-540 (Dissenting opinions).]