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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).]

[Trono v. U.S. continued
Return to pages 521-527 (Majority opinion).
Return to page 528 (Majority opinion cont.).
Return to pages 529-534 (Majority opinion cont.).
Currently at pages 535-540 (Dissenting opinions).]

The judgment of the Supreme Court of the Philippine Islands is right, and it is


Mr. Justice Holmes concurs in the result.

Mr. Justice Harlan, dissenting.

The plaintiffs in error were tried by one of the courts of first instance in the Philippine Islands for the crime of a murder. The trial was before a single judge, without a jury, and simply upon a written complaint filed by an individual with a justice of the peace. The judge who tried the accused found them not guilty of murder, and guilty only of assault. For the latter offense they were each sentenced to six months' imprisonment. Upon appeal by the accused to the Supreme Court of the Islands, the judgment of the trial court was reversed, and two of the accused were condemned to the penalty, each one, of fourteen years, eight months and one day of reclusion temporal, the other one to the penalty of eight years and one day of prision mayor, and all three to the indemnification of five hundred Philippine pesos to the heirs of the deceased.

I did not so state in a separate opinion in Kepner v. United States, 195 U.S. 100, but my concurrence in the judgment in that case was upon the ground that from the moment of the complete acquisition of the Philippine Islands by the United States, and without any act of Congress, or a proclamation of the President upon the subject, the people of those Islands became entitled, of right, to the benefit of all the fundamental guarantees of life, liberty and property to be found in that instrument. Hence, my approval of the view, announced in Kepner's case, that the accused was entitled to the benefit of the jeopardy clause of the Constitution.

Assuming that it was competent for the court of first instance to proceed without a jury against the accused upon a mere complaint by an individual, I desire to express my concurrence in the dissenting opinion of Mr. Justice McKenna, so far as it (p.536)holds that the accused in the present case were entitled to the benefit of the jeopardy clause of the Constitution, and that after their acquittal in the tribunal assuming jurisdiction to try them for the crime of murder they could not thereafter, in any appellate tribunal, deriving its authority from the United States, be again tried for that crime or for any crime more serious than the one of which they were convicted in the court of first instance.

But I dissent from the opinion and judgment of the court in the present case upon the broader ground that, as the Constitution of the United States is the supreme law of the land; as that instrument declares that except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury," and that "the trial of all crimes, except in cases of impeachment, shall be by jury;" and as the people of the Philippine Islands are as much under the authority and jurisdiction of the United States as are the people within the limits of the several States and of the organized Territories of the United States, the prosecution of the accused, based only upon the written complaint of an individual, filed with a justice of the peace, and their trial by a single judge, was without authority of law, and a nullity from beginning to end. I repeat substantially what has been said by me in former cases, that no person, within the territory and subject to the sovereign jurisdiction of the United States, can be legally deprived of his life or liberty for crime committed by him against the United States, except in the mode prescribed by the Constitution of the United States. I am unable to perceive how a principle declared by the supreme law of the land to be essential in all prosecutions for crime against the United States can be recognized as applicable to a part of the people subject to the sovereign jurisdiction of the United States, and yet be denied to another part of the people equally subject to the national authority. No tribunal or officer deriving its authority (p.537)from the United States can disregard the mandatory injunctions of the Constitution by which the Government of the United States is created, and under the sanction of which alone that Government exists and performs its functions. It may be that the application of these principles to the Philippine Islands and to the people who inhabit them may, particularly in criminal prosecutions, prove sometimes to be inconvenient. But no authority exists anywhere to set aside plain provisions of the supreme law of the land, and substitute the law of convenience for the written fundamental law.

Mr. Justice McKenna, with whom concurs Mr. Justice White, dissenting.

I am unable to concur in the judgment of the court.

When the United States acquired the Philippine Islands the system of jurisprudence which prevailed there was different from our Anglo-Saxon jurisprudence. Trial by jury was unknown. The trial court, called the court of first instance, had full authority to find the facts and adjudge the law, subject, however, to a review by a higher court of both the facts and law.

This system was continued substantially by the orders of the President and the act of July 1, 1902, providing for the government of the Islands.

Therefore when Kepner v. United States, 195 U.S. 100, was decided I was of opinion that under such a system there could be no justifiable foundation for the plea of autrefois acquit, resulting from a judgment of acquittal by the lower court, when such judgment had been reversed by the higher court; in other words, that there could be no foundation for the plea of autrefois acquit arising from an acquittal in a case where the acquittal was subsequently reversed as a result of a right to review, not only the law but the facts, given by the very statutes which provided for the trial. The court, however, decided otherwise, and I joined in a dissent to the opinion. The Kepner case is not overruled. It is said to be so clearly distinguishable as (p.538)not to call for much attention. I think otherwise. What was the Kepner case, and what is this?

Kepner was charged with the crime of embezzlement. He was tried in the court of first instance, without a jury, and acquitted. Upon the appeal of the United States to the Supreme Court of the Philippine Islands the judgment of the court of first instance was reversed, and he was found guilty and sentenced to a term of imprisonment. This court reversed the judgment and discharged Kepner on the ground that by his trial in the court of first instance he had been in jeopardy, and to try him again upon the merits, even in an appellate court, was to put him a second time in jeopardy for the same offense. In the case at bar the plaintiffs in error were charged with murder. They were tried in the court of first instance without a jury. They were convicted of simple assault. They appealed to the Supreme Court, and that court reversed the judgment of the court of first instance and convicted them of murder in the second degree. I will not stop to demonstrate that the conviction of the lesser crime of assault was an acquittal of the greater charge of murder. It has been made unnecessary by clear concession in the opinion that plaintiffs in error were acquitted of murder. Indeed (though it probably makes no difference in principle) it was explicitly so found and pronounced in the judgment of the court of first instance. There is an exact parallel, therefore, between this case and the Kepner case in all particulars but one. In the Kepner case the appeal was by the United States; in the case at bar it was by the accused, and this difference is especially made the ground of decision. It is, in effect, held that because the defendants (plaintiffs in error) appealed and sought a review, as authorized by the statute, of the minor offense for which they were convicted, the United States was given the right to try them for the greater offense for which they were acquitted. In some of the cases quoted in the opinion such a result is said to arise from the consent of the accused, deemed to be given by taking an appeal. An accused would not purposely and consciously (p.539)appeal from an acquittal of a grave crime and cast from himself the immunity that such an acquittal gives him. Should such consent be imputed? Let it be remembered that we are dealing with a great right, I may even say a constitutional right, for the opinion of the court discusses the case as though it were from a Circuit Court of the United States. Should such a right be narrowly or grudgingly considered? Should it be put in balance with other rights and lost by their exercise? I think that the guarantees of constitutions and laws should not be so construed. The life and liberty of the citizen are precious things--precious to the State as to the citizen, and concern for them is entirely consistent with a firm administration of criminal justice. I submit that the State seeks no convictions except in legal ways, and because it does not it affords means of review of erroneous rulings and judgments, and freely affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights. Yet in my judgment such is the effect of the decision just rendered.

The opinion says that as the accused takes up the whole record for review, "he thereby waives the benefit of the provisions in question (once in jeopardy) for the purpose of attempting to gain what he thinks is a greater benefit, viz., a review and reversal by the higher courts of the judgment of conviction." I repeat again, that constitutional guarantees and statutory remedies should not be put in such barter; that a defendant should not be required to give up the protection of a just (it must be so regarded for the sake of the argument) acquittal of one crime as the price of obtaining a review of an unjust conviction of another crime.

In the opinion in the Kepner case it was said: "It is not necessary to determine in this case whether the jeopardy provision in the Bill of Rights would have become a part of the law of the Islands without Congressional legislation." Resting the decision on that legislation, the court further observed: "How can it be successfully maintained that this expression of fundamental rights, which have been the subject of frequent (p.540)adjudication in the courts of this country, and the maintenance of which has been ever deemed essential to our Government, could be used by Congress in any other sense than that which has been placed upon them in construing the instrument from which they were taken?

"It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body. The Abbottsford, 98 U.S. 440."

If this language expresses a proper and determining test of once in jeopardy against the appeal of the United States, it must also be the test of once in jeopardy against the appeal of the accused in the case at bar. By that test the judgment should be reversed. Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the opinion. Opposed to it is the general consensus of opinion of American text books on criminal law and the overwhelming weight of American decided cases. Which may we suppose Congress adopted in its legislation, the interpretation of a few cases (able, it may be, and highly sanctioned by the reputation of the courts that delivered them), or the interpretation of the courts of a large number of the States of the Union? See cases in the margin.[540.1]

The Chief Justice also dissented.

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

[540.1] Alabama--Bell v. State, 48 Alabama, 684; Berry v. State, 65 Alabama, 117; Sylvester v. State, 72 Alabama, 201.

California--People v. Gilmore, 4 California, 376; People v. Apgar, 35 California, 389; People v. Gordon, 99 California, 227.

Florida--Johnson v. State, 27 Florida, 245; Golding v. State, 31 Florida, 262.

Illinois--Brennan v. People, 15 Illinois, 511; Barnett v. People, 54 Illinois, 325.

Iowa--State v. Tweedy, 11 Iowa, 350; State v. Helm, 92 Iowa, 540.

Louisiana--State v. Dennison, 31 La. Ann. 847; State v. Victor, 36 La. Ann. 978.

Michigan--People v. Knapp, 26 Michigan, 112, 114; People v. Comstock, 55 Michigan, 405, 407.

Minnesota--State v. Lessing, 16 Minnesota, 75.

Mississippi--Morris v. State, 8 S. & M. 762; Hurt v. State, 25 Mississippi, 378.

Missouri--Prior to alteration effected by constitutional amendment of 1875 (as to which see State v. Simms, 71 Missouri, 538), in State v. Ross, 29 Missouri, 32; State v. Kattlemann, 35 Missouri, 105; State v. Brannon, 55 Missouri, 63.

New York--Prior to alteration effected by the Code of Procedure (as to which see People v. Palmer, 109 N.Y. 413), in Guenther v. People, 24 N.Y. 100; People v. Dowling, 84 N.Y. 478; and see People v. Cignarale, 110 N.Y. 23, 30.

Oregon--State v. Steeves, 29 Oregon, 85.

Tennessee--Campbell v. State, 9 Yerg. 333; Slaughter v. State, 6 Humph. 410, 415.

Texas--Jones v. State, 13 Texas, 168.

Virginia--Before alteration by statute (as to which see Briggs v. Commonwealth, 82 Virginia, 554), doctrine enforced in Stuart v. Commonwealth, 28 Gratt. 950. Reinstated by later statute, as to which see Forbes v. Commonwealth, 90 Virginia, 550, and Benton v. Commonwealth, 91 Virginia, 782.

Washington--State v. Murphy, 13 Washington, 229.

Wisconsin--State v. Martin, 30 Wisconsin, 216; State v. Hill, 30 Wisconsin, 416; State v. Belden, 33 Wisconsin, 120. (But not in cases of misdemeanors--Rasmussen v. State, 63 Wisconsin, 1.)

Georgia, owing to constitutional provisions, and by statute in the States of Indiana, Kansas and Kentucky, when a new trial is granted on motion of an accused he may be tried again for the greater offense of which he was acquitted on the first trial (Morris v. State, 1 Blackf. 37; Veatch v. State, 60 Indiana, 291; State v. McCord, 8 Kansas, 232; Commonwealth v. Arnold, 83 Kentucky, 1),