Kepner v. United States/Dissent Wendell Holmes, Jr.
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 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 L. ed. 873, 874, 110 U.S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 114 U.S. 488, 492, 29 L. ed. 186, 185, 5 Sup. Ct. Rep. 972, 120 U.S. 430, 442, 30 L. ed. 708, 712, 7 Sup. Ct. Rep. 614; United States v. Ball, 163 U.S. 662, 672, 41 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, 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 continued 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 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.

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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