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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.).
Currently at pages 529-534 (Majority opinion cont.).
Proceed to pages 535-540 (Dissenting opinions).]

[paragraph continued from previous page] where will be found a very full discussion of the subject. The plaintiff in error in that case had been acquitted of the crime charged against him in the court of first instance, but the Government, not being satisfied with the decision, appealed to the Supreme Court, and that court reversed the judgment of acquittal and found Kepner guilty of the crime of which the court of first instance had acquitted him, and sentenced him to a term of imprisonment, and suspended him from any public office or public trust, and deprived him of the right of suffrage. This court, upon writ of error, held that, in reversing upon the appeal of the Government, the judgment of the court of first instance, and itself convicting the accused and pronouncing judgment against him, the Supreme Court of the Islands violated the provision in question, and its judgment was therefore reversed and the prisoner discharged. It was also held that the Government had no power to obtain a review of a judgment or decision of the trial court acquitting an accused party, and that the phrase in question was to be construed as the same phrase would be construed in the instrument from which it was originally taken, viz., the Constitution of the United States, and that the settled and well-known meaning of the language, as used in the Constitution, must also be taken when the same language is used in the act of Congress, and not as it might possibly be construed with reference to Spanish law or Spanish procedure.

The difference between that case and the one now before the court is obvious. Here the accused, while acquitted of the greater offense charged in the complaint, were convicted of a lesser offense included in the main charge. They appealed from the judgment of the court of first instance and the Government had no voice in the matter of the appeal, it simply followed them to the court to which they appealed. We regard that fact as material and controlling. The difference is vital between an attempt by the Government to review the verdict or decision of acquittal in the court of first instance and the action of the accused person in himself appealing from the (p.530)judgment and asking for its reversal, even though that judgment, while convicting him of the lower offense, acquits him of the higher one charged in the complaint.

We may regard the question as thus presented as the same as if it arose in one of the Federal courts in this country, where, upon an indictment for a greater offense, the jury had found the accused not guilty of that offense, but guilty of a lower one which was included in it, and upon an appeal from that judgment by the accused a new trial had been granted by the appellate court, and the question was whether, upon the new trial accorded, the accused could be again tried for the greater offense set forth in the indictment, or must the trial be confined to that offense of which the accused had previously been convicted, and which conviction had, upon his own motion, been set aside and reversed by the higher court.

This question has given rise to much diversity of opinion in the various state courts. Many of them have held that the new trial must be confined to the lesser offense of which the accused had been convicted on the first trial, while other courts have held precisely the contrary, and that upon a new trial the whole case was open as if there had been no former trial. Most, if not all, of these two classes of cases have been cited by the respective counsel in this case and will be found in their briefs herein. It would be unprofitable to cite and refer to each of them in detail here. They have been carefully examined.

Those cases which limit the new trial proceed upon the ground, as stated in People v. Dowling, 84 N.Y. 478, 483, by Folger, Chief Judge, as follows:

"The matter at the bottom is the constitutional provision that 'No person shall be subject to be twice put in jeopardy for the same offense' (Const. of N.Y. Art. 1, par. 6), and yet new trials are granted in criminal cases on the motion of the accused, and if he gets a new trial he is thus subject to be twice put in jeopardy. This is done on the ground, that by asking for a correction of errors made on the first trial, he does waive his constitutional protection, and does himself ask for a new (p.531)trial, though it brings him twice in jeopardy. But that waiver, unless it be expressly of the benefit of the verdict of acquittal, goes no further than the accused himself extends it. His application for a correction of the verdict is not to be taken as more extensive than his needs. He asks a correction of so much of the judgment as convicted him of guilt. He is not to be supposed to ask correction or reversal of so much of it as acquitted him of offense. He, therefore, waives his privilege as to one, and keeps it as to the other. It is upon this principle, that where, by a verdict of guilty on one count or for one offense, and an acquittal on or for another, there has been a partial conviction on an indictment, and on writ of error there has been a reversal of the conviction, the acquittal still stands good, and is, as to that count or offense, a bar. As to that, the plea of autrefois acquit can be upheld, though the plea of autrefois convict cannot be upheld as to the offense of which the verdict was guilty. The waiver is construed to extend only to the precise thing concerning which the relief is sought."

But in the subsequent case of People v. Palmer, 109 N.Y. 413, 419, the effect of the statute of New York, known as sections 464 and 544 of the Code of Criminal Procedure, was under consideration. Those sections enacted as follows:

"Sec. 464. The granting of a new trial places the parties in the same position as if no trial had been had...."

"Sec. 544. When a new trial is ordered, it shall proceed in all respects as if no trial had been had."

The statute was held valid, and that it did not violate the constitutional provision against subjecting a person to be twice put in jeopardy for the same offense, as the jeopardy was incurred with the consent of and as a privilege granted to the defendant upon his application.

And generally, it may be said that the cases holding that a new trial is not limited in the manner spoken of proceed upon the ground that in appealing from the judgment the accused necessarily appeals from the whole thereof, as well that which acquits as that which condemns; that the judgment is one entire (p.532)thing, and that as he brings up the whole record for review he thereby waives the benefit of the provision in question, for the purpose of attempting to gain what he thinks is a greater benefit, viz., a review and reversal by the higher court of the judgment of conviction. Although the accused was, as is said, placed in jeopardy upon the first trial, in regard not only to the offense of which he was accused, but also in regard to the lesser grades of that offense, yet by his own act and consent, by appealing to the higher court to obtain a reversal of the judgment, he has thereby procured it to be set aside, and when so set aside and reversed the judgment is held as though it had never been. This was in substance decided in United States v. Harding et al., tried in the United States Circuit Court in 1846, 26 Fed. Cas. 131, before Mr. Justice Grier, then a member of this court, and this is the ground substantially upon which the decisions of the other courts are placed.

In Kring v. Missouri, 107 U.S. 221, it was stated by Mr. Justice Miller, who delivered the opinion of the court, that it was admitted that by the law of Missouri, as it stood at the time of the homicide, the prisoner having been convicted of murder in the second degree upon an indictment charging him with murder in the first degree, if that conviction was set aside he could not again be tried for murder in the first degree. That law was in force at the date of the homicide for which Kring was sentenced to death, but it was subsequently, and before his retrial, changed so as to deprive him of the benefit to which he would otherwise have been entitled, and this court held that that change was, as to him, ex post facto and void. It was also said by the court that there was "no question of the right of the State of Missouri, either by her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, Does it deprive the defendant of any right of defense which the law gave him when the act was committed so that as to that offense it is ex post facto?" This court answered that question in the affirmative.(p.533)

In our opinion the better doctrine is that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy and acts upon the original judgment as if it had never been. The accused by his own action has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place. We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment, or of any lesser degree thereof. No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it and to ask for its reversal he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense, contained in the judgment which he has himself procured to be reversed.

It is urged, however, that he has no power to waive such a right, and the case of Hopt v. Utah, 110 U.S. 574, is cited as authority for that view. We do not so regard it. This court held in that case that in the Territory of Utah the accused was bound, by provisions of the Utah statute, to be present at all times during the trial, and that it was not within the power of the accused or his counsel to dispense with such statutory requirement. But on an appeal from a judgment of this nature there must be a waiver to some extent on the part of the accused when he appeals from such judgment. When the first trial is entered upon he is then put in jeopardy within the meaning of the phrase, and yet it has been held, as late as United States v. Ball, 163 U.S. 662, 671 (and nobody now doubts it), that if the judgment of conviction be reversed on his own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense of which he was (p.534)convicted. And this is generally put upon the ground that by appeal he waives his right to the plea, and asks the court to award him a new trial, although its effect will be, if granted, that he will be again tried for the offense of which he has been once convicted. This holding shows that there can be a waiver of the defense by reason of the action of the accused. As there is, therefore, a waiver in any event, and the question is as to its extent (that is, how far the accused by his own action may be deemed to have waived his right), it seems much more rational and in better accord with the proper administration of the criminal law to hold that, by appealing, the accused waives the right to thereafter plead once in jeopardy, when he has obtained a reversal of the judgment, even as to that part of it which acquitted him of the higher while convicting him of the lower offense. When at his own request he has obtained a new trial he must take the burden with the benefit, and go back for a new trial of the whole case. It does not appear to us to be a practice founded on solid reason to permit such a limited waiver by an accused party, while himself asking for a reversal of the judgment.

There is also the view to be taken that the constitutional provision was really never intended to, and, properly construed, does not cover, the case of a judgment under these circumstances, which has been annulled by the court at the request of the accused, and there is, therefore, no necessity of relying upon a waiver, because the correct construction of the provision does not make it applicable.

A further question is made as to the power of the Supreme Court of the Islands to reverse the judgment appealed from and itself convict the accused on appeal. The Supreme Court, in so doing, acted within its power and jurisdiction. It is a result of the ordinary procedure in the courts of that country, proceeding under the act of Congress already referred to. See statement of the procedure in the case heretofore cited, Kepner v. United States, 195 U.S. 100.

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