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manslaughter, murder, assault and battery | province of Iloilo, Philippine Islands, the with an intent to kill, wounding, by shoot- said accused, with illegal intention, and maing or stabbing, with an intent to commit liciously, and without justification, and with murder, rape, or assault and battery with treachery and deliberate premeditation, an intent to commit rape, shall be punish- killed Felix Villanueva in the manner folable by the sentence of a general court-mar- lowing: That on said day and in said tial, when committed by persons in the mil barrio the said accused, Homer E. Grafton, itary service of the United States, and the with the rifle that he carried at the time, punishment in any such case shall not be known as the United States magazine rifle less than the punishment provided for the c..30, fired a shot directly at Felix Villalike offense by the laws of the state, ter- nueva, causing, with said shot, a serious ritory, or district in which such offense may and necessarily fatal wound, and in consehave been committed."

quence of said wound the aforesaid Felix The 62d Article of War is in these words: Villanueva died immediately after the in“All crimes not capital, and all disorders and fliction thereof, in violation of the law.” neglects which officers and soldiers may be When the above information was filed, guilty of to the prejudice of good order and as well as when the court-martial convened, military discipline, though not mentioned the Philippines Penal Code provided as folin the foregoing Articles of War, are to be lows: taken cognizance of by a general, or a regi- "Art. 402. He who shall kill his father, mental, garrison, or field officers' court. mother, or child, whether legitimate or illemartial, according to the nature and degree gitimate, or any other of his ascendants or of the offense, and punished at the discre- descendants or his spouse, shall be punished tion of such court."

as a parricide, with the penalty of cadena The accused pleaded not guilty to each perpetua to death. specification as well as to the charge. At "Art. 403. He who, without being in. the trial he made the following admission cluded in the preceding article, shall kill in writing: “I admit that on July 24th, any person, is guilty of assassination if the 1904, I was a member of a detachment of deed is attended by any of the following cirCompany G, 12th Infantry, on duty at cumstances : (1) With treachery; (2) for Buena Vista Landing, Guimaras, P. I.; that price or promise of reward; (3) by means on July 24th, 1904, I was regularly detailed of flood, fire, or poison; (4) with deliberate on guard and was a member of the first re- premeditation; (5) with vindictiveness, by lief. That I was on post between the deliberately and inhumanly increasing the hours of 2 and 4 p. m. In the execution of suffering of the person attacked. A person my duty I shot two male Philippinos with guilty of assassination shall be punished a U. S. magazine rifle, caliber .30."

with the penalty of cadena temporal in its The court found the soldier not guilty as maximum degree to death. to each specification, and not guilty of the "Art. 404. He who, without being included charge. His acquittal was approved by the in the provisions of article 402, shall kill department commander on August 25th, another without the attendance of any of 1904, and he was released from confinement the circumstances specified in the foregoing and restored to duty. It appeared in proof article, is guilty of homicide. A person that the accused was of excellent character; guilty of homicide shall be punished with and it is stated in the opinion of the su- the penalty of reclusión temporal.preme court of the Philippines that, before At the trial in the court of first instance holding the court-martial, the department the accused interposed a demurrer, alleging commander offered to submit the case to that that court had no jurisdiction to try the court of first instance of the province, him for the offense charged, for the followbut it did not appear what action was taking reasons: The acts constituting the alen by the judge of that court in reference leged offense were committed within the to that offer.

limits of a military reservation of the On the 28th day of November, 1904, the United States and by a soldier duly enprosecuting attorney of the province of listed in the

Army

of

the United Iloilo, Philippine Islands, filed a criminal in States, in the line of duty; the court formation or complaint in the name of the of first instance of the Philippine Islands United States, in the court of first instance had no jurisdiction of the persons of officers of that province, as follows: "The sub- or enlisted men of the United States Army scriber accuses Homer E. Grafton of the for offenses committed by them in the percrime of assassination, committed in the formance of military duty; such courts manner following: That on the 24th of were not constitutional courts, as contem. July, 1904, and in the barrio of

of Santo plated by the 3d article of the Constitution Rosario, within the jurisdiction of the mu- of the United States, and were without junicipality of Buena Vista, Guimaras island, / risdiction to try causes of which such constitutional courts have exclusive jurisdic-32 Stat. at L. 691, chap. 1369. That the tion; the courts of the Philippine Islands prohibition of double jeopardy is applieable could not deprive the accused of his consti- to all criminal prosecutions in the Philiptutional privilege of trial by jury; and no pines was settled upon full consideration in court other than a military tribunal, con the recent case of Kepner v. United States, stituted by the authority of the United 195 U. S. 100, 124, 126, 129, 130, 49 L. ed. States, could try the accused upon an indict- 114, 122-125, 24 Sup. Ct. Rep. 797, in which ment which had not been found or pre- it was held that by force of the above act sented by a grand jury.

of Congress such prohibition was carried to The demurrer also stated that if the court the Philippines and became the law of those held that it had jurisdiction to try the ac- islands. In the same case it was said—what cused, then he pleaded, in bar of the pro- may be repeated as applicable to the present ceedings against him, the judgment of the case—that “this case does not call for a general court-martial, acquitting him of the discussion of the limitations of such power offense of which he was found guilty in the [the power of Congress), nor require detercourt of first instance.

mination of the question whether the jeopThe demurrer and plea were both over- ardy clause became the law of the islands ruled, the trial court holding that it had after the ratification of the treaty without jurisdiction to try the accused, and that the congressional action, as the act of Congress plea of jeopardy based on his trial by court- made it the law of these possessions when martial was insufficient, in that the military the accused was tried and convicted.” court could not legally have taken cog- We assume as indisputable, on principle nizance of the crime of assassination charged and authority, that before a person can be in the information, but only of a violation said to have been put in jeopardy of life or of the 62d Article of War.

limb the court in which he was acquitted or A trial was then had in the court of first convicted must have had jurisdiction to try instance before the judge thereof, without him for the offense charged. It is alike ina jury, and resulted in a judgment declaring disputable that if a court-martial has juris, Grafton guilty of "an infraction of article diction to try an officer or soldier for a 404 of said Penal Code, and of the crime of crime, its judgment will be accorded the homicide, in killing the said Felix Villanue-finality and conclusiveness as to the issues va, at the time and place and in the manner involved which attend the judgments of a herein before stated, and, in view of the ex- civil court in a case of which it may legally tenuating circumstances before remarked take cognizance. In Ex parte Reed, 100 U. upon, he is sentenced by the court to im- S. 13, 23, 25 L. ed. 538, 539, the court, reprisonment in such prison as the law directs, ferring to a court-martial, said: “The court for the term of twelve years and one day, it had jurisdiction over the person and the being the minimum term of the minimum case. It is the organism provided by law and degree of reclusión temporal which is the clothed with the duty of administering juspenalty for homicide, and to pay the costs tice in this class of cases. Having had such of the prosecution, and to suffer all the jurisdiction, its proceedings cannot be colother accessories of said sentence." The laterally impeached for any mere error or case was carried to the supreme court of irregularity, if there were such, committed the Philippines, where the judgment was within the sphere of its authority. Its affirmed by a divided court. The plea of judgments, when approved as required, rest double jeopardy was overruled by that court on the same basis, and are surrounded by and three of the seven judges were of opin- the same considerations, which give conion that, under the facts proved at the trial, clusiveness to the judgments of other legal the accused should have been acquitted. tribunals, including as well the lowest as

The principal contention of the accused the highest, under like circumstances. The is that his acquittal by the court-martial exercise of discretion, within authorized forbade his being again tried in the civil limits, cannot be assigned for error and court for the same offense. He bases this made the subject of review by an appellate contention, in part, upon that clause of the court.” 5th Amendment of the Constitution, pro- In Ex parte Mason, 105 U. S. 696, 699, 26 viding: "Nor shall any person be subject L. ed. 1213, 1214, the question arose whethfor the same offense to be twice put in jeop- er a court-martial could lawfully sentence ardy of life or limb;" and, in part, upon an officer of the Army, charged with the the act of Congress of July 1st, 1902, pro- offense of attempting to kill a prisoner in viding temporarily for the administration the custody of the United States, to be imof the affairs of civil government in the prisoned at hard labor in the penitentiary. Philippine Islands, and which act declared The accused was tried under the 620 Article that "no person, for the same offense, shall of War. The court said: "He has offended be twice put in jeopardy of punishment.” both against the civil and the military law.

As the proper steps were not taken to have may have committed in contravention of him proceeded against by the civil authori- them, said:

them, said: "Courts-martial are lawful trities, it was the clear duty of the military bunals, with authority to finally determine to bring him to trial under that jurisdic- any case over which they have jurisdiction, tion. Whether, after trial by the court and their proceedings, when confirmed as martial, he can be again tried in the civil provided, are not open to review by the courts, is a question we need not now con- civil tribunals, except for the purpose of assider. It is enough if the court-martial had certaining whether the military court had jurisdiction to proceed, and what has been jurisdiction of the person and subject-matdone is within the powers of that jurisdic- ter, and whether, though having such juristion.” It was objected, in that case, that diction, it had exceeded its powers in the the sentence was in excess of what the law sentence pronounced.” This language was allowed. The court referred to the 97th repeated in Carter v. McClaughry, 183 U. Article of War, which provided that "no S. 365, 380, 46 L. ed. 236, 242, 22 Sup. Ct. person in the military service shall, under Rep. 181. the sentence of a court-martial, be pun- It thus appears to be settled that the ished by confinement in a penitentiary un civil tribunals cannot disregard the judgless the offense of which he may be con- ments of a general court-martial against an victed would, by some statute of the United accused officer or soldier, if such court had States or by some statute of the state, ter- jurisdiction to try the offense set forth in ritory, or district in which such offense may the charge and specifications; this, notwithbe committed, or by the common law, as standing the civil court, if it had first taken the same exists in such state, territory, or hold of the case, might have tried the acdistrict, subject such convict to such im- cused for the same offense or even one of prisonment.” It then proceeded: “Under higher grade arising out of the same facts. this article, when the offense is one not We are now to inquire whether the courtrecognized by the laws regulating civil so- martial in the Philippines had jurisdiction ciety, there can be no punishment by con- to try Grafton for the offenses charged finement in a penitentiary. The same is against him. It is unnecessary to enter true when the offense, though recognized upon an extended discussion of that quesby the civil authorities, is not punishable tion, for it is entirely clear that the courtby the civil courts in that way. But when martial had jurisdiction to try the accused the act charged as 'conduct to the prejudice upon the charges preferred against him. of good order and military discipline' is ac- The 62d Article of War, in express words, tually a crime against society which is confers upon a general, or a regimental, punishable by imprisonment in the peniten- garrison, or field officers' court-martial, actiary, it seems to us clear that a court-cording to the nature and degree of the martial is authorized to inflict that kind of offense, jurisdiction to try "all crimes” not punishment. The act done is a civil crime, capital, committed in time of peace by an and the trial is for that act. The proceed - officer or soldier of the Army. The crimes ings are had in a court-martial because the referred to in that article manifestly emoffender is personally amenable to that ju- brace those not capital, committed by ofrisdiction, and what he did was not only ficers or soldiers of the Army in violation criminal according to the laws of the land, of public law as enforced by the civil pow. but prejudicial to the good order and disci-er. No crimes committed by officers or sol. pline of the Army to which he belonged. diers of the Army are excepted by the The 62d article provides that the offender, above article from the jurisdiction thus conwhen convicted, shall be punished at the ferred upon courts-martial, except those discretion of the court, and the 97th article that are capital in their nature. While, does no more than prohibit the court from however, the jurisdiction of general courtssentencing him to imprisonment in a peni- martial extends to all crimes, not capital, tentiary in a case where, if he were tried committed against public law by an officer for the same act in the civil courts, such or soldier of the Army within the limits of imprisonment could not be inflicted.” In the territory in which he is serving, this Carter v. Roberts, 177 U. S. 496, 498, 44 L. jurisdiction is not exclusive, but only coned. 861, 862, 20 Sup. Ct. Rep. 713, which current with that of the civil courts. Of such was a case of the punishment under the offenses courts-martial may take cognizance judgment of a general court-martial of an under the 62d Article of War, and, if they officer of the Army, the court, after observ- first acquire jurisdiction, their judgments ing that every officer, before entering on cannot be disregarded by the civil courts the duties of his office, subscribes to the for mere error or for any reason not affectArticles of War enacted by Congress and ing the jurisdiction of the military court. places himself within the power of courts- We are next to inquire whether, having martial to pass on any offense which he 'been acquitted by a court-martial of the

crime of homicide as defined by the Penal named person.

named person. The facts which attended Code of the Philippines, could Grafton be that killing would show the degree of such subjected thereafter to trial for the same offense, whether assassination, of which the offense in a civil tribunal deriving its au- civil court might take cognizance if it acthority, as did the court-martial, from the quired jurisdiction before the military court same government, namely, that of the acted, or homicide, of which the military United States ? That he will be punished court could take cognizance if it acted befor the identical offense of which he has fore the civil court did. If tried by the been acquitted, if the judgment of the civil military court for homicide, as defined in court, now before us, be affirmed, is beyond the Penal Code, and acquitted on that question, because, as appears from the rec- charge, the guaranty of exemption from ord, the civil court adjudged him guilty and being twice put in jeopardy of punishment sentenced him to imprisonment specifically for the same offense would be of no value for "an infraction of article 404 of said to the accused if, on trial for assassination, Penal Code and of the crime of homicide.” | arising out of the same acts, he could be

It was said by the trial judge that the again punished for the identical offense of offense charged against Grafton in the civil which he had been previously acquitted. court was "assassination," which offense, he

In Chitty's Criminal Law, vol. 1, pp. 452, said, was punishable under § 403 of the 455, 462, the author says: “It is not in all Philippines Penal Code by death, and of cases necessary that the two charges should which crime the military court could not, be precisely the same in point of degree, under the Articles of War, have taken cog- for it is sufficient if an acquittal of the one nizance; whereas, the offense for which he will show that the defendant could not was tried by court-martial was only homi- have been guilty of the other. Thus, a cide, as defined by $ 404 of the Penal Code. general acquittal of murder is a discharge But if not guilty of homicide, as defined upon an indictment of manslaughter upon in the latter section of the Penal Code,-and the same person, because the latter charge such was the finding of the court-martial,- was included in the former, and if it had he could not, for the same acts and under so appeared on the trial the defendant might the same evidence, be guilty of assassina- have been convicted of the inferior offense; tion, as defined in the former section of the and, on the other hand, an acquittal of Code. Looking at the matter in another manslaughter will preclude a future proseway, the above suggestion by the trial cution for murder, for, if he were innocent judge could only mean that simply because, of the modified crime, he could not be guilty speaking generally, the civil court has ju- of the same fact, with the addition of malrisdiction to try an officer or soldier of the ice and design.” Mr. Bishop, in his Treatise Army for the crime of assassination, it on Criminal Law, 7th ed. § 1050, says: It may yet render a judgment by which he is not necessary, to establish the defense could be subjected to punishment for an "autrefois acquitor “convict,” that the ofoffense included in the charge of assas- fense in each indictment should be the same sination, although of such lesser offense he in name. If the transaction is the same, or had been previously acquitted by another if each rests upon the same facts between court of competent jurisdiction. This view the same parties, it is sufficient to make is wholly inadmissible. Upon this general good the defense. In Com. v. Roby, 12 Pick. point the supreme court of the Philippines, 503, the court said: “Thus an acquittal on referring to the defense of former jeopardy, an indictment for murder will be a good said: “The circumstance that the civil bar to an indictment for manslaughter, and, trial was for murder, a crime of which e converso, an acquittal on an indictment for courts-martial in time of peace have no ju- manslaughter wiĩl be a bar to a prosecurisdiction, while the prior military trial was tion for murder; for, in the first instance, for manslaughter only, does not defeat the had the defendant been guilty, not of murdefense on this theory. The identity of the der, but of manslaughter, he would have offenses is determined, not by their grade, been found guilty of the latter offense upon but by their nature. One crime may be a

One crime may be a that indictment; and in the second instance, constituent part of the other. The crite since the defendant is not guilty of manrion is, Does the result of the first prosecu- slaughter, he cannot be guilty of mantion negative the facts charged in the sec- slaughter under circumstances of aggravaond? It is apparent that it does. The action which enlarge it into murder. 1 Starquittal of the defendant of the charge of kie, Crim. Pl. 2d ed. 322." manslaughter pronounces him guiltless of It must, then, be taken on the present facts necessary to constitute murder and record that an affirmance of the judgment admits the plea of jeopardy.” The offense, of the civil court will subject the accused homicide or manslaughter, charged against to punishment for the same acts, constitutGrafton, was the unlawful killing of a 'ing the same offense as that of which he had been previously acquitted by a military , another court, civil or military, of the same court having complete jurisdiction to try government. Congress has chosen, in its and punish him for such offense. It is at discretion, to confer upon general courtstempted to meet this view by the sugges- martial authority to try an officer or soltion that Grafton committed two distinct dier for any crime, not capital, committed offenses,-one against military law and dis- by him in the territory in which he is servcipline, the other against the civil law, ing. When that was done the judgment of which may prescribe the punishment for such military court was placed upon the crimes against organized society, by whom same level as the judgments of other tribusoever those crimes are committed,and nals when the inquiry arises whether an that a trial for either offense, whatever its accused was, in virtue of that judgment, result, whether acquittal or conviction, and put in jeopardy of life or limb. Any poseven if the first trial was in a court of sible conflict in these matters, between civil competent jurisdiction, is no bar to a trial and military courts, can be obviated either in another court of the same government by withholding from courts-martial all aufor the other offense. We cannot assent to thority to try officers or soldiers for crimes this view. It is, we think, inconsistent prescribed by the civil power, leaving the with the principle, already announced, that civil tribunals to try such offenses, or by a general court-martial has, under existing investing courts-martial with exclusive justatutes, in time of peace, jurisdiction to risdiction to try such officers and soldiers try an officer or soldier of the Army for for all crimes not capital. any offense, not capital, which the civil law In support of the view that the judgment declares to be a crime against the public. of a military court against an officer or solThe express prohibition of double jeopardy dier of the Army for acts constituting a for the same offense means that wherever crime against both the civil law and the such prohibition is applicable, either by op- military organization is no bar to a second eration of the Constitution or by action of trial in the civil courts for the same acts, Congress, no person shall be twice put in we are referred to Fox v. Ohio, 5 How. 410, jeopardy of life or limb for the same of- 435, 12 L. ed. 213, 224; United States v. fense. Consequently, a civil court proceed- Marigold, 9 How. 560, 13 L. ed. 257, and ing under the authority of the United Moore v. Illinois, 14 How. 13, 19, 20, 14 L. States cannot withhold from an officer or ed. 306, 308, 309. Nothing said or detersoldier of the Army the full benefit of that mined in either of those cases conflicts with guaranty, after he has been once tried in a the decision in this case. In the above cases, military court of competent jurisdiction. especially in Moore's Case, the question was Congress, by express constitutional provi- mooted whether the same acts could be sion, has the power to prescribe rules for treated as crimes both against the United the government and regulation of the Army, States and a state. It was there suggested but those rules must be interpreted in con- that a person could not be punished by two nection with the prohibition against a man's governments on account of or for the same being put twice in jeopardy for the same act constituting crime, without violating offense. The former provision must not be the 5th Amendment. But this court, speakso interpreted as to nullify the latter. If, ing by Mr. Justice Grier, said: “An offense, therefore, a person be tried for an offense in its legal signification, means the transin a tribunal deriving its jurisdiction and gression of a law. A man may be comauthority from the United States, and is pelled to make reparation in damages to acquitted or convicted, he cannot again be the injured party, and be liable also to puntried for the same offense in another tribu- ishment for a breach of the public peace, nal deriving its jurisdiction and authority in consequence of the same act; and may from the United States. A different inter- be said, in common parlance, to be twice pretation finds no sanction in the Articles punished for the same offense. Every citiof War; for the 102d Article of War (which zen of the United States is also a citizen is the same as article 87, adopted in 1806, of a state or territory. He may be said to 2 Stat. at L. 369, chap. 20) declares that owe allegiance to two sovereigns, and may “no person”-referring, we take it, to per- be liable to punishment for an infraction sons in the Army—“shall be tried a second of the laws of either. The same act may time for the same offense.” But we rest be an offense or transgression of the laws our decision of this question upon the broad of both. Thus, an assault upon the marshal ground that the same acts constituting a of the United States, and hindering him in crime against the United States cannot, the execution of legal process, is a high after the acquittal or conviction of the ac-offense against the United States, for which cused in a court of competent jurisdiction, the perpetrator is liable to punishment; be made the basis of a second trial of the and the same act may be also a gross accused for that crime in the same or in breach of the peace of the state,-a riot,

27 S. C.-48.

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