Louis Dowdell, Jr v. United States

Citation31 S.Ct. 590,55 L.Ed. 753,221 U.S. 325
Decision Date15 May 1911
Docket NumberNo. 131,131
PartiesLOUIS A. DOWDELL, JR., and Wilson W. Harn, Plffs. in Err., v. UNITED STATES
CourtUnited States Supreme Court

Messrs. Charles F. Consaul, Charles C. Heltman, and Frank B. Ingersoll for plaintiffs in error.

Assistant Attorney General Fowler for defendant in error.

Mr. Justice Day delivered the opinion of of the court:

This is a writ of error to the supreme court of the Philippine Islands to review a proceeding in which the plaintiffs in error, Louis A. Dowdell and Wilson W. Harn, together with one Charles H. MacIlvaine, were convicted in the court of first instance of the Philippine Islands upon an amended complaint which charged that the three persons named, as inspectors and lieutenants of the Philippine constabulary, in the province of Samar, Philippine Islands, conspired together to abstract, steal, and convert to their own use certain public funds in the custody and control of Dowdell as supply officer, and guarded by Harn as officer of the day; that, in pursuance of the conspiracy, the three defendants, with the intent and purpose of stealing, and converting the same to their own use, unlawfully, feloniously, and wilfully removed the same from the office of the Philippine constabulary to the residence of the said Harn in Catbalogan, in said province, and did there conceal the same, and during the night, in pursuance of said conspiracy, and for the purpose of concealing the evidence of their crime, and of deceiving their superior officers concerning the disappearance of said public funds, did take and remove the safe in which said funds had been kept in the office of the Philippine constabulary, and caused the same to be taken and conveyed out into the bay adjacent and there sunk in the waters of the bay. The public funds abstracted and taken consisted of Philippine coin and paper currency of the value of 9,971 pesos and 26 centavos, equivalent in value to 49,856 pesetas, in violation of paragraph 3 of article 390 of the Philippine Penal Code.

The accused were convicted, and the present plaintiffs in error sentenced to imprisonment to six years and a day. Plaintiffs in error thereupon took an appeal to the supreme court of the Philippine Islands. In that court they were sentenced to eight years and one day imprisonment.

The case is brought here under § 10 of the act of July 1, 1902 (32 Stat. at L. 691, chap. 1369), giving this court the right to review, revise, reverse, modify or affirm final judgments or decrees of the supreme court of the Philippine Islands in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved.

In the supreme court of the Philippine Islands the attorney general asked that the case be sent back to the court of first instance for a new trial, because it did not appear that defendants had pleaded to the complaint, but the court overruled this application, and thereupon the court made the following order:

'Resolved, That the clerk of the court of first instance of Samar be, and he is hereby, directed to send forthwith to this court a certified copy of all entries in any book in his office referring to the case of the United States v. Louis A. Dowdell and Wilson W. Harn, and particularly of any entry relating to the arraignment of the defendants and to their plea. He is further directed to at once send to this court a certificate as to whether he was present at the separate trial of each of the defendants, Dowdell and Harn, and, if so, whether each or both of them were present at such trial, and the Hon. W. F. Norris, the judge who tried the case, is hereby directed to send to this court a certificate showing whether the defendants and each of them were present during the trial of said cause against Louis A. Dowdell and Wilson W. Harn.'

To this order Judge Norris, judge of the court of first instance, made return, in which he stated that each of the defendants, now plaintiffs in error, was present in open court during the entire time of trial, from the calling of the case until after sentence was pronounced. The judge said he was unable to say whether there had been a formal arraignment or not. The clerk of the court of first instance certified a record of the proceedings in court, in which it appears that the defendants were asked whether they pleaded guilty or not guilty of the crime of which they were charged, and answered that they pleaded not guilty.

The official reporter of the court certified that his notes of the proceedings showed that the plaintiffs in error were arraigned, waived reading of the complaint, and pleaded not guilty. The certificate of the reporter was signed by him as court reporter of the twelfth judicial district, and the judge of that district certified that the reporter was the duly appointed, qualified, and acting reporter of the district. The reporter's certificate adds nothing to that which the clerk certified.

The first six assignments of error cover objections to this action of the court in amending its record, and to the want of presence of the accused, and the failure to show by the record the arraignment of the accused, their plea to the complaint, and their presence during the trial.

If the supreme court of the Philippine Islands, in taking the action referred to for supplying the record of omissions, did not violate the Constitution or any statute of the United States, then we cannot disturb the judgment below on these assignments of error. It is contended that the court erred in taking the statement of the judge of the court of first instance without the knowledge or consent of the plaintiffs in error, that the statement was not sworn to, that the plaintiffs in error were not given the opportunity to meet the witnesses face to face, or to be confronted with the witnesses, and therefore such statement was received in violation of article 6 of the Amendments to the Constitution of the United States, and § 5 of the act of Congress of July 1, 1902 (32 Stat. at L. 691, chap. 1369).

A like objection is made to the statement certified by the clerk of the court of first instance, and because his statement is not a certified copy of the minutes, or any part thereof, of the court, was not sworn to, and had no seal of the court attached.

As to the objection of the lack of oath to the certificates of the judge and clerk, and absence of a seal on the clerk's certificate of the proceedings, questions of that kind, where the court is correcting a record before it as an appellate tribunal, are addressed to the court making the order, which may determine for itself in what form it will accept such record. At least, there is no valid objection to such practice based on the Constitution or statutes of the United States.

It is averred that the order of the supreme court of the...

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