said accused, with illegal intention, and maliciously, and without justification, and with treachery and deliberate premeditation, killed Felix Villanueva in the manner fol manslaughter, murder, assault and battery | province of Iloilo, Philippine Islands, the with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-mar-lowing: That on said day and in said tial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided for the like offense by the laws of the state, territory, or district in which such offense may have been committed." The 62d Article of War is in these words: "All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general, or a regimental, garrison, or field officers' courtfield officers' courtmartial, according to the nature and degree of the offense, and punished at the discretion of such court." The accused pleaded not guilty to each specification as well as to the charge. At the trial he made the following admission in writing: "I admit that on July 24th, 1904, I was a member of a detachment of Company G, 12th Infantry, on duty at Buena Vista Landing, Guimaras, P. I.; that on July 24th, 1904, I was regularly detailed on guard and was a member of the first relief. That I was on post post between the hours of 2 and 4 p. m. In the execution of my duty I shot two male Philippinos with a U. S. magazine rifle, caliber .30." barrio the said accused, Homer E. Grafton, with the rifle that he carried at the time, known as the United States magazine rifle c. .30, fired a shot directly at Felix Villanueva, causing, with said shot, a serious and necessarily fatal wound, and in consequence of said wound the aforesaid Felix Villanueva died immediately after the infliction thereof, in violation of the law." When the above information was filed, as well as when the court-martial convened, the Philippines Penal Code provided as follows: "Art. 402. He who shall kill his father, mother, or child, whether legitimate or illegitimate, or any other of his ascendants or descendants or his spouse, shall be punished as a parricide, with the penalty of cadena perpetua to death. "Art. 403. He who, without being included in the preceding article, shall kill any person, is guilty of assassination if the deed is attended by any of the following circumstances: cumstances: (1) With treachery; (2) for price or promise of reward; (3) by means of flood, fire, or poison; (4) with deliberate premeditation; (5) with vindictiveness, by deliberately and inhumanly increasing the suffering of the person attacked. A person guilty of assassination shall be punished with the penalty of cadena temporal in its maximum degree to death. "Art. 404. He who, without being included in the provisions of article 402, shall kill another without the attendance of any of the circumstances specified in the foregoing article, is guilty of homicide. A person guilty of homicide shall be punished with the penalty of reclusión temporal." The court found the soldier not guilty as to each specification, and not guilty of the charge. His acquittal was approved by the department commander on August 25th, 1904, and he was released from confinement and restored to duty. It appeared in proof that the accused was of excellent character; and it is stated in the opinion of the supreme 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 to that offer. On the 28th day of November, 1904, the prosecuting attorney of the province of Iloilo, Philippine Islands, filed a criminal information or complaint in the name of the United States, in the court of first instance of that province, as follows: "The subscriber accuses Homer E. Grafton of the crime of assassination, committed in the manner following: That on the 24th of July, 1904, and in the barrio of Santo Rosario, within the jurisdiction of the municipality of Buena Vista, Guimaras island, leged offense were committed within the to all criminal prosecutions in the Philippines was settled upon full consideration in the recent case of Kepner v. United States, 195 U. S. 100, 124, 126, 129, 130, 49 L. ed. stitutional 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 applicable could not deprive the accused of his constitutional privilege of trial by jury; and no court other than a military tribunal, constituted by the authority of the United 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 presented by a grand jury. The demurrer also stated that if the court held that it had jurisdiction to try the accused, then he pleaded, in bar of the proceedings against him, the judgment of the general court-martial, acquitting him of the offense of which he was found guilty in the court of first instance. it was held that by force of the above act of Congress such prohibition was carried to the Philippines and became the law of those islands. In the same case it was said—what may be repeated as applicable to the present case-that "this case does not call for a discussion of the limitations of such power [the power of Congress], nor require determination of the question whether the jeop 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." The demurrer and plea were both over-ardy clause became the law of the islands ruled, the trial court holding that it had jurisdiction to try the accused, and that the plea of jeopardy based on his trial by courtmartial was insufficient, in that the military court could not legally have taken cognizance of the crime of assassination charged in the information, but only of a violation of the 62d Article of War. A trial was then had in the court of first instance before the judge thereof, without a jury, and resulted in a judgment declaring Grafton guilty of "an infraction of article 404 of said Penal Code, and of the crime of homicide, in killing the said Felix Villanueva, at the time and place and in the manner hereinbefore stated, and, in view of the extenuating circumstances before remarked upon, he is sentenced by the court to imprisonment in such prison as the law directs, for the term of twelve years and one day, it being the minimum term of the minimum degree of reclusión temporal which is the penalty for homicide, and to pay the costs of the prosecution, and to suffer all the other accessories of said sentence." The case was carried to the supreme court of the Philippines, where the judgment was affirmed by a divided court. The plea of double jeopardy was overruled by that court and three of the seven judges were of opinion that, under the facts proved at the trial, the accused should have been acquitted. We assume as indisputable, on principle and authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged. It is alike indisputable that if a court-martial has juris diction to try an officer or soldier for a crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance. In Ex parte Reed, 100 U. S. 13, 23, 25 L. ed. 538, 539, the court, referring to a court-martial, said: "The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations, which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by an appellate court." In Ex parte Mason, 105 U. S. 696, 699, 26 L. ed. 1213, 1214, the question arose wheth The principal contention of the accused is that his acquittal by the court-martial forbade his being again tried in the civil court for the same offense. He bases this contention, in part, upon that clause of the 5th Amendment of the Constitution, providing: "Nor shall any person be subject for 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 the act of Congress of July 1st, 1902, providing temporarily for the administration of the affairs of civil government in the Philippine Islands, and which act declared that "no person, for the same offense, shall be twice put in jeopardy of punishment." an officer of the Army, charged with the offense of attempting to kill a prisoner in the custody of the United States, to be imprisoned at hard labor in the penitentiary. The accused was tried under the 62d Article of War. The court said: "He has offended 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: "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 punished by confinement in a penitentiary unless the offense of which he may be convicted would, by some statute of the United States or by some statute of the state, territory, or district in which such offense may be committed, or by the common law, as the same exists in such state, territory, or district, subject such convict to such imprisonment." It then proceeded: "Under this article, when the offense is one not recognized by the laws regulating civil society, there can be no punishment by confinement in a penitentiary. The same is true when the offense, though recognized by the civil authorities, is not punishable by the civil courts in that way. But when the act charged as 'conduct to the prejudice of good order and military discipline' is actually a crime against society which is punishable by imprisonment in the penitentiary, it seems to us clear that a courtmartial is authorized to inflict that kind of punishment. The act done is a civil crime, and the trial is for that act. The proceedings are had in a court-martial because the offender is personally amenable to that jurisdiction, and what he did was not only criminal according to the laws of the land, but prejudicial to the good order and discipline of the Army to which he belonged. The 62d article provides that the offender, when convicted, shall be punished at the discretion of the court, and the 97th article does no more than prohibit the court from sentencing him to imprisonment in a penitentiary in a case where, if he were tried for the same act in the civil courts, such imprisonment could not be inflicted." In Carter v. Roberts, 177 U. S. 496, 498, 44 L. ed. 861, 862, 20 Sup. Ct. Rep. 713, which was a case of the punishment under the judgment of a general court-martial of an officer of the Army, the court, after observing that every officer, before entering on the duties of his office, subscribes to the Articles of War enacted by Congress and places himself within the power of courtsmartial to pass on any offense which he It thus appears to be settled that the civil tribunals cannot disregard the judgments of a general court-martial against an accused officer or soldier, if such court had jurisdiction to try the offense set forth in the charge and specifications; this, notwithstanding the civil court, if it had first taken hold of the case, might have tried the accused for the same offense or even one of higher grade arising out of the same facts. We are now to inquire whether the courtmartial in the Philippines had jurisdiction to try Grafton for the offenses charged against him. It is unnecessary to enter upon an extended discussion of that question, for it is entirely clear that the courtmartial had jurisdiction to try the accused upon the charges preferred against him. The 62d Article of War, in express words, confers upon a general, or a regimental, garrison, or field officers' court-martial, according to the nature and degree of the offense, jurisdiction to try "all crimes" not capital, committed in time of peace by an officer or soldier of the Army. The crimes referred to in that article manifestly embrace those not capital, committed by officers or soldiers of the Army in violation of public law as enforced by the civil power. No crimes committed by officers or soldiers of the Army are excepted by the above article from the jurisdiction thus conferred upon courts-martial, except those that are capital in their nature. While, however, the jurisdiction of general courtsmartial extends to all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with that of the civil courts. Of such offenses courts-martial may take cognizance under the 62d Article of War, and, if they first acquire jurisdiction, their judgments cannot be disregarded by the civil courts for mere error or for any reason not affecting the jurisdiction of the military court. We are next to inquire whether, having been acquitted by a court-martial of the that killing would show the degree of such offense, whether assassination, of which the civil court might take cognizance if it acquired jurisdiction before the military court acted, or homicide, of which the military court could take cognizance if it acted before the civil court did. If tried by the military court for homicide, as defined in the Penal Code, and acquitted on that charge, the guaranty of exemption from being twice put in jeopardy of punishment for the same offense would be of no value to the accused if, on trial for assassination, arising out of the same acts, he could be again punished for the identical offense of which he had been previously acquitted. crime of homicide as defined by the Penal | named person. The facts which attended Code of the Philippines, could Grafton be subjected thereafter to trial for the same offense in a civil tribunal deriving its authority, as did the court-martial, from the same government, namely, that of the United States? That he will be punished for the identical offense of which he has been acquitted, if the judgment of the civil court, now before us, be affirmed, is beyond question, because, as appears from the record, the civil court adjudged him guilty and sentenced him to imprisonment specifically for "an infraction of article 404 of said Penal Code and of the crime of homicide." It was said by the trial judge that the offense charged against Grafton in the civil court was "assassination," which offense, he said, was punishable under § 403 of the Philippines Penal Code by death, and of which crime the military court could not, under the Articles of War, have taken cognizance; whereas, the offense for which he was tried by court-martial was only homicide, as defined by § 404 of the Penal Code. But if not guilty of homicide, as defined in the latter section of the Penal Code,—and such was the finding of the court-martial,he could not, for the same acts and under the same evidence, be guilty of assassination, as defined in the former section of the Code. Looking at the matter in another way, the above suggestion by the trial judge could only mean that simply because, speaking generally, the civil court has jurisdiction to try an officer or soldier of the Army for the crime of assassination, it may yet render a judgment by which he could be subjected to punishment for an offense included in the charge of assassination, although of such lesser offense he had been previously acquitted by another court of competent jurisdiction. This view is wholly inadmissible. Upon this general point the supreme court of the Philippines, referring to the defense of former jeopardy, said: "The circumstance that the civil trial was for murder, a crime of which courts-martial in time of peace have no jurisdiction, while the prior military trial was for manslaughter only, does not defeat the defense on this theory. The identity of the offenses is determined, not by their grade, but by their nature. One crime may be a constituent part of the other. The criterion is, Does the result of the first prosecution negative the facts charged in the second? It is apparent that it does. The acquittal of the defendant of the charge of manslaughter pronounces him guiltless of facts necessary to constitute murder and admits the plea of jeopardy." The offense, homicide or manslaughter, charged against Grafton, was the unlawful killing of a 27 S. C.-48. It In Chitty's Criminal Law, vol. 1, pp. 452, 455, 462, the author says: "It is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other. Thus, a general acquittal of murder is a discharge upon an indictment of manslaughter upon the same person, because the latter charge was included in the former, and if it had so appeared on the trial the defendant might have been convicted of the inferior offense; and, on the other hand, an acquittal of manslaughter will preclude a future prosecution for murder, for, if he were innocent of the modified crime, he could not be guilty of the same fact, with the addition of malice and design." Mr. Bishop, in his Treatise on Criminal Law, 7th ed. § 1050, says: is not necessary, to establish the defense "autrefois acquit" or "convict," that the offense in each indictment should be the same in name. If the transaction is the same, or if each rests upon the same facts between the same parties, it is sufficient to make good the defense. In Com. v. Roby, 12 Pick. 503, the court said: "Thus an acquittal on an indictment for murder will be a good bar to an indictment for manslaughter, and, e converso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder; for, in the first instance, had the defendant been guilty, not of murder, but of manslaughter, he would have been found guilty of the latter offense upon that indictment; and in the second instance, since the defendant is not guilty of manslaughter, he cannot be guilty of manslaughter under circumstances of aggravation which enlarge it into murder. 1 Starkie, Crim. Pl. 2d ed. 322." It must, then, be taken on the present record that an affirmance of the judgment of the civil court will subject the accused to punishment for the same acts, constituting the same offense as that of which he discretion, to confer upon general courtsmartial authority to try an officer or soldier for any crime, not capital, committed by him in the territory in which he is serving. When that was done the judgment of such military court was placed upon the same level as the judgments of other tribunals when the inquiry arises whether an accused was, in virtue of that judgment, put in jeopardy of life or limb. Any possible conflict in these matters, between civil and military courts, can be obviated either by withholding from courts-martial all authority to try officers or soldiers for crimes prescribed by the civil power, leaving the civil tribunals to try such offenses, or by investing courts-martial with exclusive jurisdiction to try such officers and soldiers for all crimes not capital. 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 attempted to meet this view by the suggestion that Grafton committed two distinct offenses, one against military law and discipline, the other against the civil law, which may prescribe the punishment for crimes against organized society, by whomsoever those crimes are committed,-and that a trial for either offense, whatever its result, whether acquittal or conviction, and even if the first trial was in a court of competent jurisdiction, is no bar to a trial in another court of the same government for the other offense. We cannot assent to this view. It is, we think, inconsistent with the principle, already announced, that a general court-martial has, under existing statutes, in time of peace, jurisdiction to try an officer or soldier of the Army for 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 from the United States. A different interpretation finds no sanction in the Articles of War; for the 102d Article of War (which is the same as article 87, adopted in 1806, 2 Stat. at L. 369, chap. 20) declares that "no person"-referring, we take it, to persons in the Army-"shall be tried a second time for the same offense." But we rest our decision of this question upon the broad ground that the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in in consequence of the same act; and may be said, in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the state,-a riot, |
