John Flemister v. United States, 70

CourtUnited States Supreme Court
Writing for the CourtHolmes
Citation28 S.Ct. 129,207 U.S. 372,52 L.Ed. 252
Docket NumberNo. 70,70
Decision Date16 December 1907

207 U.S. 372
28 S.Ct. 129
52 L.Ed. 252
JOHN M. FLEMISTER, Plff. in Err.,



No. 70.
Submitted December 5, 1907.
Decided December 16, 1907.

Page 373

Mr. E. J. Bowers for plaintiff in error.

Solicitor General Hoyt and Assistant Attorney General Russell for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

The plaintiff in error was convicted of a criminal attempt against an agent of the authorities by striking one Feliciano

Page 374

Celimin, a policeman, who was trying to arrest him, and by using vile, abusive, and threatening language to the same officer, contrary to article 249, clause 2, of the Penal Code of the Philippines. He was sentenced under article 250, which provides the punishment for such attempts. He was convicted in the court of first instance of the same facts, but was sentenced under article 252, which punishes those who, without being included in article 249, should resist the authorities or their agents. He then appealed, whereupon the supreme court decided that the offense fell within article 249, and increased the sentence. The errors assigned are that the supreme court had no jurisdiction to increase the sentence, this being stated in various forms, and that 'the decision of the court places the accused in jeopardy for the same offense according to the corresponding provisions of § 5 of the act of Congress of July 1, 1902 [32 Stat. at L. 692, chap. 1369].' There is also the usual averment that the decision deprives the accused of his liberty without due process of law; but that may be passed over, as there is nothing in the record to justify it. It is not necessary to consider what would amount to denial of due process of law. The plaintiff in error was convicted after a full trial, with all the usual forms, upon a specific and definite complaint and evidence warranting the result.

The objection to the power of the supreme court to increase the sentence is disposed of by the recent decision in Trono v. United States, 199 U. S. 521, 50 L. ed. 292, 26 Sup. Ct. Rep. 121. The only assignment of error that needs a words is that which was intended to rely upon a previous conviction that was pleaded and put in evidence. This was a conviction by a municipal court of a violation of ordinances of the city of Manila by disorderly conduct, a breach of the peace, and the assault upon one Domingo Salvador at the same time and place as the assault alleged in the complaint before us....

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12 cases
  • U.S. v. Busic, s. 77-1375
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 30, 1981
    ...previously had been decided in Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), Flemister v. United States, 207 U.S. 372, 28 S.Ct. 129, 52 L.Ed. 252 (1907), and Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914). In Trono the Court reasoned that......
  • Abbate v. United States
    • United States
    • United States Supreme Court
    • March 30, 1959
    ...v. State of New Jersey, 356 U.S. 464, 478, note 3, 78 S.Ct. 829, 838, 2 L.Ed.2d 913 (dissenting opinion). Flemister v. United States, 207 U.S. 372, 28 S.Ct. 129, 130, 52 L.Ed. 252, decided under the same statute, involved two prosecutions of two different assaults on two police officers at ......
  • United States v. Bruce, 2086
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 7, 1943
    ...v. United States, 6 Cir., 91 F.2d 404; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153. Cf. Flemister v. United States, 207 U.S. 372, 28 S.Ct. 129, 52 L.Ed. 252. The rule is so well settled that further discussion or citation of authority would be The real question to be determi......
  • Gabriel Diaz v. United States
    • United States
    • United States Supreme Court
    • February 19, 1912
    ...(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 Messrs. Frederic R. Coud......
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