Homer Grafton v. United States, No. 358
| Court | United States Supreme Court |
| Writing for the Court | Harlan |
| Citation | 51 L.Ed. 1084,27 S.Ct. 749,206 U.S. 333,11 Ann.Cas. 640 |
| Parties | HOMER E. GRAFTON, Plff. in Err., v. UNITED STATES |
| Docket Number | No. 358 |
| Decision Date | 27 May 1907 |
v.
UNITED STATES.
Page 334
Messrs. Clarence S. Nettles, John H. Atwood, and Frederic D. McKenney for plaintiff in error.
[Argument of Counsel from pages 334-336 intentionally omitted]
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Solicitor General Hoyt for defendant in error.
[Argument of Counsel from pages 336-340 intentionally omitted]
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Mr. Justice Harlan delivered the opinion of the court:
The writ of error brings up for review a judgment of the supreme court of the Philippine Islands, affirming a judgment of the court of first instance in the province of Iloilo, by which the plaintiff in error, Grafton, was adjudged guilty
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of homicide as defined by the Penal Code of the Philippines, and sentenced to imprisonment for twelve years and one day.
The history of this criminal prosecution, as disclosed by the record, is as follows:
Homer E. Grafton, a private in the Army of the United States, was tried before a general court-martial convened in 1904 by Brigadier General Carter, commanding the department of the Visayas, Philippine Islands, upon the following charge and specifications: 'Charge: Violation of the 62d Article of War: Specification 1. In that Private Homer E. Grafton, Company G, 12th Infantry, being a sentry on post, did unlawfully, wilfully, and feloniously kill Florentino Castro, a Philippino, by shooting him with a U. S. magazine rifle, caliber .30. This at Buena Vista Landing, Guimaras, P. I., July 24th, 1904. Specification 2. In that Private Homer E. Grafton, Company G, 12th Infantry, being a sentry on post, did unlawfully, wilfully, and feloniously kill Felix Villanueva, a Philippino, by shooting him with a U. S. magazine rifle, caliber .30. This at Buena Vista Landing, Guimaras, P. I., July 24th, 1904.'
By the 58th Article of War it is provided: 'In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery 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-martial, 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
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regimental, garrison, or field 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 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.'
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 holding the court-martial, the department commander offered to submit the case to the court of first instance of the province, but it did not appear what action was taken 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, pov ince of Iloilo, Philippine Islands, the said accused, with illegal intention, and maliciously, and without justification, and with treachery and deliberate premeditation, killed Felix Villanueva in the manner following: That on said day and in said barrio the said accused, Homer E.
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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: (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 reclusi on temporal.'
At the trial in the court of first instance the accused interposed a demurrer, alleging that that court had no jurisdiction to try him for the offense charged, for the following reasons: The acts constituting the alleged offense were committed within the limits of a military reservation of the United States and by a soldier duly enlisted in the Army of the United States, in the line of duty; the court of first instance of the Philippine Islands had no jurisdiction of the persons of officers or enlisted men of the United States Army for offenses com-
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mitted by them in the performance of military duty; such courts were not constitutional courts, as contemplated by the 3d article of the Constitution of the United States, and were without jurisdiction to try causes of which such constitutional courts have exclusive jurisdiction; the courts of the Philippine Islands 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 indictment 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.
The demurrer and plea were both overruled, the trial court holding that it had jurisdiction to try the accused, and that the plea of jeopardy based on his trial by court-martial 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 ir cumstances 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 reclusi on 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 sevan
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judges were of opinion that, under the facts proved at the trial, the accused should have been acquitted.
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 jeopardy 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...
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