Gabriel Diaz v. United States, No. 384

• Court: United States Supreme Court
• Writing for the Court: Van Devanter
• Citation: 32 S.Ct. 250,223 U.S. 442,56 L.Ed. 500
• Docket Number: No. 384
• Decision Date: 19 February 1912
• Parties: GABRIEL DIAZ, Plff. in Err., v. UNITED STATES

223 U.S. 442 32 S.Ct. 250 56 L.Ed. 500 GABRIEL DIAZ, Plff. in Err.,

v.

UNITED STATES.

No. 384. Argued November 16, 1911. Decided February 19, 1912.

[Syllabus from pages 442-444 intentionally omitted]

Page 444

On May 30, 1906, at San Carlos, province of Occidental Negros, Philippine Islands, Gabriel Diaz, by blows and kicks, inflicted bodily injuries upon Cornelio Alcanzaren, and by reason thereof was the next day charged before the justice of the peace of San Carlos with assault and battery. At the hearing upon that charge Diaz was found guilty of a misdemeanor and fined 50 pesetas and costs, which he paid. Subsequently, on the 26th of June, Alcanzaren died, and Diaz was then charged before the same justice of the peace with homicide, it being alleged that the death ensued from the bodily injuries. At the preliminary investigation of this charge, the justice concluded that there was reasonable cause to believe that it was well founded, and accordingly held the accused to await the action of the court of first instance. There was then filed in that court a complaint charging Diaz with the crime of homicide, not capital, upon which he subsequently was tried, found guilty, and sentenced to a term of imprisonment and other penalties.

When called upon to plead in the court of first instance, Diaz interposed a plea of former jeopardy, supported by a copy of the record of the proceedings before the justice of the peace upon the charge of assault and battery and at the preliminary investigation, but the plea was overruled. Then, during the trial, his counsel introduced in evidence the record of those proceedings. In doing this the counsel spoke only of 'the proceedings in the case for a misdemeanor,' but it otherwise appears that what was meant was the record of both proceedings. Both were embraced in a single document, authenticated by a single certificate, and it clearly is disclosed that counsel on both sides and the court treated the entire document as in evidence. It embraced the testimony produced before the justice at the hearing upon the assault and battery charge and at the preliminary investigation, including the personal statement of the accused and the report of an autopsy,

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upon the body of the deceased, performed conformably to the Philippine law; and it was partly upon this testimony that the court of first instance rested its judgment of conviction.

On two occasions, covering the examination and cross-examination of two witnesses for the government, Diaz, who was at large on bail, voluntarily absented himself from the trial, but consented that it should proceed in his absence, but in the presence of his counsel, which it did.

Following his conviction, Diaz prosecuted an appeal to the supreme court of the Philippines, where, subject to a change made in the term of imprisonment (see Trono v. United States, 199 U. S. 521, 50 L. ed. 292, 26 Sup. Ct. Rep. 121, 4 A. & E. Ann. Cas. 773; Flemister v. United States, 207 U. S. 372, 52 L. ed. 252, 28 Sup. Ct. Rep. 129), the conviction was sustained (15 Philippine, 123) and the case was then brought here.

Messrs. Frederic R. Coudert and Howard Thayer Kingsbury for plaintiff in error.

Solicitor General Lehmann for defendant in error.

[Argument of Counsel from pages 445-448 intentionally omitted]

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Mr. Justice Van Devanter, after stating the case as above, delivered the opinion of the court:

The provision against double jeopardy, in the Philippine civil government act (32 Stat. at L. 691, chap. 1369, § 5), is in terms restricted to instances where the second jeopardy is 'for the same offense' as was the first. Gavieres v. United States, 220 U. S. 338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421. That was not the case here. The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although

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identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. Com. v. Roby, 12 Pick. 496; State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335; Johnson v. State, 19 Tex. App. 453, 53 Am. Rep. 385. Besides, under the Philippine law, the justice of the peace, although possessed of jurisdiction to try the accused for assault and battery, was without jurisdiction to try him for homicide; and, of course, the jeopardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction. All that could be claimed for that jeopardy was that it protected the accused from being again prosecuted for the assault and battery, and therefore required that the latter be not treated as included, as a lesser offense, in the charge of homicide, as otherwise might have been done under Philippine Comp. Stat. § 3284. State v. Littlefield, supra. It follows that the plea of former jeopardy disclosed no obstacle to the prosecution for homicide.

It is objected that the accused was deprived of the right, secured to him by § 5 of the Philippine civil government act, supra, 'to meet the witnesses face to face,' in that the judgment of conviction for homicide was rested in part upon the testimony produced before the justice of the peace at the trial for assault and battery and at the preliminary investigation. But this objection overlooks the circumstances in which the record wherein that testimony was set forth was received in evidence. It was not offered by the government, but by the accused, ans was offered without qualification or restriction. And it is otherwise manifest that the offer included the testimony embodied in the record as well as the recitals of what

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was done by the justice. It was all received just as it was offered, no objection being interposed by the government. In some respects the testimony was favorable to the accused and in others favorable to the government. It included a statement by the accused, who refrained from testifying in the court of first instance, and also the report of an autopsy which was favorable to him. In these circumstances the testimony was rightly treated as admitted generally, as applicable to any issue which it tended to prove, and as equally available to the government and the accused. Sears v. Starbird, 78 Cal. 225, 230, 20 Pac. 547; Diversy v. Kellogg, 44 Ill. 114, 121, 92 Am. Dec. 154. True, the testimony could not have been admitted without the consent of the accused, first, because it was within the rule against hearsay, and, second, because the accused was entitled to meet the witnesses face to face. But it was not admitted without his consent, but at his request, for it was he who offered it in evidence. So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objection, it is to be considered and given its natural probative effect as if it were in law admissible. Damon v. Carrol, 163 Mass. 404, 408, 40 N. E. 185; Sherwood v. Sissa, 5 Nev. 349, 355; United States v. McCoy, 193 U. S. 593, 598, 48 L. ed. 805, 807, 24 Sup. Ct. Rep. 528; Schlemmer v. Buffalo, R. & P. R. Co. 205 U. S. 1, 9, 51 L. ed. 681, 685, 27 Sup. Ct. Rep. 407; Neal v. Delaware, 103 U. S. 370, 396, 26 L. ed. 567, 573; Foster v. United States, 101 C. C. A. 485, 178 Fed. 165, 176. And of the fact that it came from witnesses who were not present at the trial, it is to be observed that the right of confrontation secured by the Philippine civil government act is in the nature of a privilege extended to the accused, rather than a restriction upon him (State v. McNeil, 33 La. Ann. 1332, 1335), and that he is free to assert it or to waive it, as to him may seem advantageous. That this is so is a necessary conclusion from the adjudged cases relating to the like right secured by the Constitutions of the several states and the Constitution of the United

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States. Thus, it is held that the right is waived where, by the consent of the accused, the prosecution is permitted to read in evidence the testimony of an absent witness, given in some prior proceeding (Hancock v. State, 14 Tex. App. 392; Rosenbaum v. State, 33 Ala. 354; Williams v. State, 61 Wis. 281, 21 N. W. 56; State v. Polson, 29 Iowa, 133); or a statement of what such a witness would testify, if present, as embodied in an agreement made to avoid a continuance or to dispense with the presence of the witness (State v. Wagner, 78 Mo. 644, 648, 47 Am. Rep. 131; State v. Fooks, 65 Iowa, 452, 21 N. W. 773; State v. Mortensen, 26 Utah, 312, 73 Pac. 562, 633; State v. Lewis, 31 Wash. 75, 88, 71 Pac. 778); or the deposition of such a witness, taken within or without the jurisdiction (Butler v. State, 97 Ind. 378; State v. Vanella, 40 Mont. 326, 106 Pac. 364, 20 A. & E. Ann. Cas. 398; Wightman v. People, 67 Barb. 44; People v. Guidici, 100 N. Y. 503, 508, 3 N. E. 493, 5 Am. Crim. Rep. 455; People v. Murray, 52 Mich. 288, 17 N. W. 843). In the last case, which involved a conviction for murder in the second degree, the question presented and the ruling thereon were stated by Judge Cooley as follows:

'A chief ground of error relied upon is that the prosecution was allowed to put in evidence certain depositions taken out of court of witnesses not present at the trial. The facts seem to be that the attorneys for the respective parties stipulated to put in certain depositions on both sides, and they were put in accordingly. This, it is said, was in violation of the respondent's constitutional right to be confronted with his witnesses. But the court made no ruling in the matter; what was done was voluntarily done by the parties; the defendant had the...