Trono v. United States/Dissent McKenna
Mr. Justice McKenna, with whom concurs Mr. Justice White, dissenting:

I am unable to consur in the judgment of the court.

When the United States acquired the Philippine Islands, the system of jurisprudence which prevailed there was different from our Anglo-Saxon jurisprudence. Trial by jury was unknown. The trial court, called the court of first instance, had full authority to find the facts and adjudge the law, subject, however, to a review by a higher court of both the facts and law.

This system was continued substantially by the orders of the President and the act of July 1, 1902, providing for the government of the islands.

Therefore, when Kepner v. United States, 195 U.S. 100, 49 L. ed. 114, 24 Sup.Ct.Rep. 797, was decided, I was of opinion that, under such a system, there could be no justifiable foundation for the plea of autrefois acquit, resulting from a judgment of acquittal by the lower court, when such judgment had been reversed by the higher court; in other words, that there could be no foundation for the plea of autrefois acquit arising from an acquittal in a case where the acquittal was subsequently reversed as a result of a right to review, not only the law, but the facts, given by the very statutes which provided for the trial. The court, however, decided otherwise, and I joined in a dissent to the opinion. The Kepner Case is not overruled. It is said to be so clearly distinguishable as not to call for much attention. I think otherwise. What was the Kepner Case and what is this?

Kepner was charged with the crime of embezzlement. He was tried in the court of first instance, without a jury, and acquitted. Upon the appeal of the United States to the supreme court of the Philippine Islands, the judgment of the court of first instance was reversed, and he was found guilty, and sentenced to a term of imprisonment. This court reversed the judgment, and discharged Kepner on the ground that, by his trial in the court of first instance, he had been in jeopardy, and to try him again upon the merits, even in an appellate court, was to put him a second time in jeopardy for the same offense. In the case at bar the plaintiffs in error were charged with murder. They were tried in the court of first instance without a jury. They were convicted of simple assault. They appealed to the supreme court, and that court reversed the judgment of the court of first instance, and convicted them of murder in the second degree. I will not stop to demonstrate that the conviction of the lesser crime of assault was an acquittal of the greater charge of murder. It has been made unnecessary by clear concession in the opinion that plaintiffs in error were acquitted of murder. Indeed (though it probably makes no difference in principle), it was explicitly so found and pronounced in the judgment of the court of first instance. There is an exact parallel, therefore, between this case and the Kepner Case in all particulars but one. In the Kepner Case the appeal was by the United States; in the case at bar it was by the accused; and this difference is especially made the ground of decision. It is, in effect, held that because the defendants (plaintiffs in error) appealed and sought a review, as authorized by the statute, of the minor offense for which they were convicted, the United States was given the right to try them for the greater offense for which they were acquitted. In some of the cases quoted in the opinion such a result is said to arise from the consent of the accused, deemed to be given by taking an appeal. An accused would not purposely and consciously appeal from an acquittal of a grave crime, and cast from himself the immunity that such an acquittal gives him. Should such consent be imputed? Let it be remembered that we are dealing with a great right, I may even say a constitutional right, for the opinion of the court discusses the case as though it were from a circuit court of the United States. Should such a right be narrowly or grudgingly considered? Should it be put in balance with other rights, and lost by their exercise? I think that the guaranties of constitutions and laws should not be so construed. The life and liberty of the citizen are precious things,-precious to the state as to the citizen; and concern for them is entirely consistent with a firm administration of criminal justice. I submit that the state seeks no convictions except in legal ways, and because it does not, it affords means of review of erroneous rulings and judgments, and freely affords such means. It does not clog them with conditions or forfeit by their exercise great and constitutional rights. Yet, in my judgment, such is the effect of the decision just rendered.

The opinion says that as the accused takes up the whole record for review, 'he thereby waives the benefit of the provision in question [once in jeopardy] 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.' I repeat again, that constitutional guaranties and statutory remedies should not be put in such barter; that a defendant should not be required to give up the protection of a just (it must be so regarded for the sake of the argument) acquittal of one crime as the price of obtaining a review of an unjust conviction of another crime.

In the opinion in the Kepner Case it was said: '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 lesislation.' Resting the decision on that legislation, the court further observed: '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 (The Abbotsford v. Johnson) 98 U.S. 440, 25 L. ed. 168.'

If this language expresses a proper and determining test of once in jeopardy against the appeal of the United States, it must also be the test of once in jeopardy against the appeal of the accused in the case at bar. By that test the judgment should be reversed. Here and there may be found a decision which supports the exposition of once in jeopardy expressed in the opinion. Opposed to it is the general concensus of opinion of American textbooks on criminal law and the overwhelming weight of American decided cases. Which may we suppose Congress adopted in its legislation, the interpretation of a few cases (able, it may be, and highly sanctioned by the reputation of the courts that delivered them), or the interpretation of the courts of a large number of the states of the Union? See cases in the margin.

The CHIEF JUSTICE also dissented.

Alabama.-Bell v. State, 48 Ala. 684, 17 Am. Rep. 40; Berry v. State, 65 Ala. 117; Sylvester v. State, 72 Ala. 201.

California.-People v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620; People v. Apgar, 35 Cal. 389; People v. Gordon, 99 Cal. 227, 33 Pac. 901.

Florida.-Johnson v. State, 27 Fla. 245, 9 So. 208; Golding v. State, 31 Fla. 262, 12 So. 525.

Illinois.-Brennan v. People, 15 Ill. 511; Barnett v. People, 54 Ill. 325.

Iowa.-State v. Tweedy, 11 Iowa, 350; State v. Helm, 92 Iowa, 540, 61 N. W. 246.

Louisiana.-State v. Dennison, 31 La. Ann. 847; State v. Victor, 36 La. Ann. 978.

Michigan.-People v. Knapp, 26 Mich. 112, 114; People v. Comstock, 55 Mich. 405, 407, 21 N. W. 384.

Minnesota.-State v. Lessing, 16 Minn. 75, Gil. 64. Mississippi.-Morris v. State, 8 Smedes & M. 762; Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225.

Missouri.-Prior to alteration effected by constitutional amendment of 1875, as to which see State v. Simms, 71 Mo. 538, in State v. Ross, 29 Mo. 32; State v. Kattlemann, 35 Mo. 105; State v. Brannon, 55 Mo. 63, 17 Am. Rep. 643.

New York.-Prior to alteration effected by the Code of Procedure, as to which see People v. Palmer, 109 N. Y. 413, 4 Am. St. Rep. 477, 17 N. E. 213, in Guenther v. People, 24 N. Y. 100; People v. Dowling, 84 N. Y. 478; and see People v. Cignarale, 110 N. Y. 23, 30, 17 N. E. 135.

Oregon.-State v. Steeves, 29 Or. 85, 43 Pac. 947.

Tennessee.-Campbell v. State, 9 Yerg. 333, 30 Am. Dec. 417; Slaughter v. State, 6 Humph. 410, 415.

Texas.-Jones v. State, 13 Tex. 168, 62 Am. Dec. 550.

Virginia.-Before alteration by statute, as to which see Briggs v. Com. 82 Va. 554, doctrine enforced in Stuart v. Com. 28 Gratt. 950. Reinstated by later statute, as to which see Forbes v. Com. 90 Va. 550, 19 S. E. 164, and Benton v. Com. 91 Va. 782, 21 S. E. 495.

Washington.-State v. Murphy, 13 Wash. 229, 43 Pac. 44.

Wisconsin.-State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; State v. Hill, 30 Wis. 416; State v. Belden, 33 Wis. 120, 14 Am. Rep. 748. But not in cases of misdemeanors,-Rasmussen v. State, 63 Wis. 1, 22 N. W. 835.

Georgia, owing to constitutional provisions, and by statute in the states of Indiana, Kansas, and Kentucky, when a new trial is granted on motion of an accused, he may be tried again for the greater offense of which he was acquitted on the first trial. Morris v. State, 1 Blackf. 37; Veatch v. State, 60 Ind. 291; State v. McCord. 8 Kan. 232, 12 Am. Rep. 469; Com. v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114. 

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