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    KEPNER v. U S, 195 U.S. 100 (1904)

    U.S. Supreme Court

    KEPNER v. U S, 195 U.S. 100 (1904)

    195 U.S. 100

    THOMAS E. KEPNER, Piff. in Err.,
    v.
    UNITED STATES.
    No. 244.

    Argued April 21, 22, 1904.
    Decided May 31, 1904.

    [195 U.S. 100, 101]   Messrs. Charles H. Aldrich and James Hamilton Lewis for plaintiff in error.

    [195 U.S. 100, 105]   Mr. Lebbeus R. Wilfley for defendant in error.

    [195 U.S. 100, 107]   Solic

    itor General Hoyt

    [195 U.S. 100, 110]  

    Mr. Justice Day delivered the opinion of the court:

    Thomas E. Kepner, a practising lawyer in the city of Manila, Philippine Islands, was sharged with a violation of the law in the embezzlement of the funds of his client (estafa.) Upon trial, in November, 1901, in the court of first instance, without a jury, he was acquitted, it being the judgment of the court that he was not guilty of the offense charged. Upon appellate proceedings by the United States to the supreme court of the Philippine Islands, the judgment of the court of first instance, finding the accused not guilty, was reversed, and Kepner was found guilty, and sentenced to a term of imprisonment of one [195 U.S. 100, 111]   year, eight months, and twenty-one days, suspended from any public office or place of trust, and deprived of the right of suffrage.

    Error was assigned in the appellate court upon the ground that the accused had been put in jeopardy a second time by the appellate proceedings, in violation of the law against putting a person twice in jeopardy for the same offense, and contrary to the Constitution of the United States.

    The appeal was taken by the United States on December 20, 1901. A motion to dismiss the appeal was made on January 1, 1902. The motion was finally overruled on October 11, 1902; the final decision in the case, finding the accused guilty, and imposing the sentence, was rendered on December 3, 1902

    A proper consideration of the question herein made renders it necessary to notice some of the steps by which the jurisdiction of the courts in which the accused was tried was established.

    The United States acquired the Philippine Islands by cession under the treaty of peace executed at Paris, between the United States and Spain, on December 10, 1898, the final ratifications being exchanged April 11, 1899 [30 Stat. at L. 1754].

    The islands, after American occupation, had been under military rule prior to the creation of the Philippine Commission.

    Under the control of the military government, orders had been issued, among others, military order number 58, dated April 23, 1900, which order was in part as follows;

    Manila, P. I., April 23, 1900.

    ... * * [195 U.S. 100, 112]   'Sec. 3. All public offenses triable in courts of first instance or in courts of similar jurisdiction, now established or that hereafter may be established, must be prosecuted by complaint or information.

    ... * *

    3. To testify as a witness in his own behalf; but if a defendant offers himself as a witness, he may be cross-examined as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

    6. To have compulsory process issue for obtaining witnesses in his own favor.

    ... * *

    ... * *

    This order was amended by an act of the Commission (No. 194), passed August 10, 1901, and is as follows: '(G) No. 194. An Act Conferring Jurisdiction on Justices of the Peace, etc.

    Courts were established for the islands under an act passed by the Commission June 11, 1901:

    ... * * [195 U.S. 100, 115]   'Sec. 16. The jurisdiction of the supreme court shall be of two kinds:

    ... * *

    ... * *

    ... * *

    ... * *

    On July 1, 1902, Congress passed an act (32, Stat. at L. 691, chap. 1369): 'Act of Congress of July 1, 1902, Temporarily to Provide for the Administration of the Affairs of Civil Government in the Philippine Islands, and for Other Purposes.

    ... * *

    ... * *

    The act just quoted became a law before the final conviction of the accused in the supreme court of the islands.

    It is contended by the government that that part of the law under immediate consideration, which provides that no person, for the same offense, shall be twice put in jeopardy, must be construed in view of the system of laws prevailing in the islands before the same were ceded to the United States, and that the purpose of Congress was to make effectual the jurisprudence of the islands as known and established before American occupation, and that the provision against double jeopardy must be read in the light of the understanding of that expression in the civil law, or rather the Spanish law, as it was then in force.

    The citations in the brief of the learned counsel for the government seem to establish that under the Spanish law, as theretofore administered, one who had been convicted by a judgment of the court of last resort could not again be prosecuted for the same offense. We notice some of these provisions:

    In Spanish law the doctrine found expression in Fuero Real (A. D. 1255) and the Siete Partidas (A. D. 1263).

    In the encyclopedia of Spanish law, published by Don Lorenzo Arrazola in 1848, it is said, in considering the persons who may be accused of crime:

    Under that system of law it seems that a person was not regarded as being in jeopardy in the legal sense until there had been a final judgment in the court of last resort. The lower courts were deemed examining courts, having preliminary jurisdiction, and the accused was not finally convicted or acquitted until the case had been passed upon in the audiencia, or supreme court, whose judgment was subject to review in the supreme court at Madrid for errors of law, with power to grant a new trial. The trial was regarded as one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law. The change introduced under military order No. 58, as amended by act 194 of the Commission, made the judgment of the court of first instance final, in cases other than capital, whether the accused be convicted or acquitted, unless an appeal was prosecuted by the government or the accused in the manner pointed out.

    In order to determine what Congress meant in the language used in the act under consideration, 'No person for the same offense shall be twice put in jeopardy of punishment,' we must look to the origin and source of the expression, and the judicial construction put upon it before the enactment in question was passed. A consideration of the events preceding this regulation makes evident the intention of Congress to [195 U.S. 100, 122]   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, newly subject to our jurisdiction.

    That it was the intention of the President in the instructions to the Philippine Commission to adopt a well-known part of the fundamental law of the United States, and to give much of the beneficent protection of the Bill of Rights to the people of the Philippine Islands, is not left to inference; for in his instructions, dated April 7, 1900 (see Public Laws and Resolutions of Philippine Com., 6-9), he says:

    But he was careful to add:

    These words are not strange to the American lawyer or student of constitutional history. They 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 13th Amendment against slavery or involuntary servi- [195 U.S. 100, 124]   tude except as a punishment for crime, and that of article 1, 9, to the passage of bills of attainder and ex post facto laws. These principles were not taken from the Spanish law; they were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty.

    When Congress came to pass the act of July 1, 1902, it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In view of the expressed declaration of the President, followed by the action of Congress, both adopting, with little alteration, the provisions of the Bill of Rights, there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our government which the President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the islands had not theretofore enjoyed their benefit.

    How can it be successfully maintained that these expressions of fundamental rights, which have been the subject of frequent 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 Abbotsford, 98 U.S. 440 , 25 L. ed. 168.

    It is not necessary to determine in this case whether the jeopardy provision in the Bill of Rights would have become part of the law of the islands without congressional legislation. The power of Congress to make rules and regulations for territory incorporated in or owned by the United States is settled by an unbroken line of decisions of this court, and is no longer open to question. American Ins. Co. v. 356 Bales of Cotton, 1 [195 U.S. 100, 125]   Pet. 511, 7 L. ed. 242; Murphy v. Ramsey, 114 U.S. 15 , 29 L. ed. 47, 5 Sup. Ct. Rep. 747; Church of Jesus Christ of L. D. S. v. United States, 136 U.S. 1, 42 , 43 S., 34 L. ed. 481, 491, 10 Sup. Ct. Rep. 792; Downes v. Bidwell, 182 U.S. 244 , 45 L. ed. 1088, 21 Sup. Ct. Rep. 770; Hawaii v. Mankichi, 190 U.S. 197 , 47 L. ed. 1016, 23 Sup. Ct. Rep. 787. 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 9 as follows:

    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 5, had already specifically provided that no person should be put twice in jeopardy of punishment for the same offense. While 9 recognizes the established jurisdiction of the courts of the islands, it was not intended to repeal the specific guaranty of 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. Re Rouse, H. & Co. 33 C. C. A. 356, 63 U. S. App. 570, 91 Fed. 97-100, and cases therein cited; Townsend v. Little, 109 U.S. 504, 512 , 27 S. L. ed. 1012, 1015, 3 Sup. Ct. Rep. 357.

    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 is taken. 1 Kent, Com. 336. United [195 U.S. 100, 126]   States v. Wong Kim Ark, 169 U.S. 649 , 42 L. ed. 890, 18 Sup. Ct. Rep. 456, in which this court said:

    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, Pleas of the Crown, quoted by Mr. Justice Story in United States v. Gibert, 2 Sumn. 39 Fed. Cas. No. 15,204:

    In this court is was said by Mr. Justice Miller, in Ex parte Lange, 18 Wall. 163, 21 L. ed. 872:

    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 [195 U.S. 100, 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.:

    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 offense. 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 offense for which the appellant might be punished under either of two [195 U.S. 100, 128]   statutes. The appellant was prosecuted for the assault, and convicted under one of the statutes, 3 and 4 Wm. IV., chap. 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 text-book 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 , 24 L. ed. 1118. 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 Ill. 308, 19 L. R. A. 342, 33 N. E. 40; State v. Bowen, 45 Minn. 145, 47 N. W. 650; State v. layne, 96 Tenn. 668, 36 S. W. 390.

    In United States v. Sanges, 144 U.S. 310 , 36 L. ed. 445, 12 Sup. Ct. Rep. 609, 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:

    In the course of the opinion Justice Gray cites, among other cases, Com. v. Cummings and Com. v. McGinnis, opinion by Chief Justice Shaw, 3 Cush. 212, 50 Am. Dec. 732. In Archbold, Crim. 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 , 41 L. ed. 300, 16 Sup. Ct. Rep. 1192, 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:

    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 [195 U.S. 100, 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 Cal. 467. Mr. Bishop, in his work upon Criminal Law, sums up the scope and authority of such statutes as follows:

    The author's conclusion has support in the case of People v. Miner, 144 Ill. 308, 19 L. R. A. 342, 33 N. E. 40, wherein a statute giving an appeal when the accused had been acquitted before a competent tribunal was held in violation of 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 Cal. 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 case of State v. Lee, 65 Conn. 265, 27 L. R. A. 498, 48 Am. St. Rep. 202, 30 Atl. 1110, in the reasoning of the court seems opposed to this view. But no reference [195 U.S. 100, 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:

    And further:

    The Ball Case, 163 U.S. 662 , 41 L. ed. 300, 16 Sup. Ct. Rep. 1192, 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 [195 U.S. 100, 134]   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, 21 L. ed. 872, 877), 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 [195 U.S. 100, 135]   disagree (United States v. Perez, 9 Wheat. 579, 6 L. ed. 165; see Simmons v. United States, 142 U.S. 148 , 35 L. ed. 968, 12 Sup. Ct. Rep. 171; Logan v. United States, 144 U.S. 263 , 36 L. ed. 429, 12 Sup. Ct. Rep. 617; Thompson v. United States 155 U.S. 271 , 39 L. ed. 146, 15 Sup. Ct. Rep. 73), or, notwithstanding their agreement and verdict, if the verdict is set aside on the prisoner's exceptions for error in the trial. Hopt v. Utah, 104 U.S. 631, 635 , 26 S. L. ed. 873, 874, 110 U.S. 574 , 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 114 U.S. 488, 492 , 29 S. L. ed. 186, 185, 5 Sup. Ct. Rep. 972, 120 U.S. 430, 442 , 30 S. L. ed. 708, 712, 7 Sup. Ct. Rep. 614; United States v. Ball, 163 U.S. 662, 672 , 41 S. L. ed. 300, 303, 16 Sup. Ct. Rep. 1192. 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, 21 L. ed. 872, 878; 1 Bishop, Crim. Law, 5th ed. 998. I may refer further to the opinions of Kent and Curtis, in People v. Olcott, 2 Johns. Cas. 301; 2 Day, 507, note; United States v. Morris, 1 Curt. C. C. 23, Fed. Cas. No. 15,815, and to the well-reasoned decision in State v. Lee, 65 Conn. 265, 27 L. R. A. 498, 48 Am. St. Rep. 202, 30 Atl. 1110.

    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. Utah, a man cannot waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rights. Thomspon v. Utah, 170 U.S. 343, 353 , 354 S., 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. 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 con- [195 U.S. 100, 136]   tinued 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 as, 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 Bishop, 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 , 41 L. ed. 300, 16 Sup. Ct. Rep. 1192. 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 everyday 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 [195 U.S. 100, 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 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 modes 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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