Thomas Kepner v. United States, No. 244

CourtUnited States Supreme Court
Writing for the CourtDay
Citation195 U.S. 100,49 L.Ed. 114,1 Ann. Cas. 655,24 S.Ct. 797
PartiesTHOMAS E. KEPNER, Piff. in Err. , v. UNITED STATES
Decision Date31 May 1904
Docket NumberNo. 244

195 U.S. 100
24 S.Ct. 797
49 L.Ed. 114
THOMAS E. KEPNER, Piff. in Err.,

v.

UNITED STATES.

No. 244.
Argued April 21, 22, 1904.
Decided May 31, 1904.

Page 101

Messrs. Charles H. Aldrich and James Hamilton Lewis for plaintiff in error.

[Argument of Counsel from pages 101-105 intentionally omitted]

Page 105

Mr. Lebbeus R. Wilfley for defendant in error.

[Argument of Counsel from 105 intentionally omitted]

Page 107

Solic

itor General Hoyt

[Argument of Counsel from pages 107-110 intentionally omitted]

Page 110

Mr. Justice Day delivered the opinion of the court:

Thomas E. Kepner, a practising lawyer in the city of Manila, Philippine Islands, was sharged with a violation of the law in the embezzlement of the funds of his client (estafa.) Upon trial, in November, 1901, in the court of first instance, without a jury, he was acquitted, it being the judgment of the court that he was not guilty of the offense charged. Upon appellate proceedings by the United States to the supreme court of the Philippine Islands, the judgment of the court of first instance, finding the accused not guilty, was reversed, and Kepner was found guilty, and sentenced to a term of imprisonment of one

Page 111

year, eight months, and twenty-one days, suspended from any public office or place of trust, and deprived of the right of suffrage.

Error was assigned in the appellate court upon the ground that the accused had been put in jeopardy a second time by the appellate proceedings, in violation of the law against putting a person twice in jeopardy for the same offense, and contrary to the Constitution of the United States.

The appeal was taken by the United States on December 20, 1901. A motion to dismiss the appeal was made on January 1, 1902. The motion was finally overruled on October 11, 1902; the final decision in the case, finding the accused guilty, and imposing the sentence, was rendered on December 3, 1902.

A proper consideration of the question herein made renders it necessary to notice some of the steps by which the jurisdiction of the courts in which the accused was tried was established.

The United States acquired the Philippine Islands by cession under the treaty of peace executed at Paris, between the United States and Spain, on December 10, 1898, the final ratifications being exchanged April 11, 1899 [30 Stat. at L. 1754].

The islands, after American occupation, had been under military rule prior to the creation of the Philippine Commission.

Under the control of the military government, orders had been issued, among others, military order number 58, dated April 23, 1900, which order was in part as follows;

'General Orders, No. 58.

Manila, P. I., April 23, 1900.

'In the interests of justice, and to safeguard the civil liberties of the inhabitants of these islands, the Criminal Code of Procedure now in force therein is hereby amended in certain of its important provisions as indicated in the following enumerated sections:

* * * * *

Page 112

'Sec. 3. All public offenses triable in courts of first instance or in courts of similar jurisdiction, now established or that hereafter may be established, must be prosecuted by complaint or information.

* * * * *

'Rights of accused at the trial.

'Sec. 15. In all criminal prosecutions the defendant shall be entitled:

'1. To appear and defend in person and by counsel at every stage of the proceedings.

'2. To be informed of the nature and cause of the accusation.

3. To testify as a witness in his own behalf; but if a defendant offers himself as a witness, he may be cross-examined as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

'4. To be exempt from testifying against himself.

'5. To be confronted at the trial by and to cross-examine the witnesses against him. Where the testimony of a witness for the prosecution has previously been taken down by question and answers in the presence of the accused or his counsel, the defense having had an opportunity to cross-examine the witness, the deposition of the latter may be read, upon satisfactory proof to the court that he is dead or insane, or cannot with due diligence be found in the islands.

6. To have compulsory process issue for obtaining witnesses in his own favor.

'7. To have a speedy and public trial.

'8. To have the right of appeal in all cases.

* * * * *

'Sec. 43. From all final judgments of the courts of first instance or courts of similar jurisdiction, and in all cases in which the law now provides for appeals from said courts, an appeal may be taken to the supreme court, as hereinafter prescribed. . . .

'Sec. 44. Either party may appeal from a final judgment,

Page 113

or from an order made after judgment, affecting the substantial rights of the appellant, or in any cases now permitted by law. The United States may also appeal from a judgment for the defendant, rendered on a demurrer to an information or complaint, and from an order dismissing a complaint or information.

* * * * *

'Sec. 50. It shall not be necessary to forward to the supreme court the record, or any part thereof, of any case in which there shall have been an acquittal, or in which the sentence imposed does not exceed confinement in prison for one year, or a fine of 250 pesos, exclusive of costs, unless such case shall have been duly appealed. But such sentences shall be executed upon the order of the court in which the trial was had. The record in cases in which the death penalty, or imprisonment exceeding one year, or a fine exceeding 250 pesos, exclusive of costs of trial, shall have been imposed, shall be forwarded to the clerk of the criminal branch of the supreme court within twenty days, but not earlier than fifteen days after the rendition of the sentence. All cases involving sentence of death, or of imprisonment exceeding six years, or of fine exceeding 1250 pesos or in which an appeal shall have been taken, shall be submitted to the criminal branch of the supreme court, and shall thereafter take the same course as is now provided by law. Cases forwarded to the supreme court involving sentences less serious than those hereinbefore last mentioned, and not appealed, shall be referred by the clerk to the ministerio fiscal for consideration, and if the latter return the same, concurring in the sentence imposed, the record shall immediately be returned to the trial court for execution of sentence. If the ministerio fiscal shall not concur in the sentence, the case shall be submitted to the criminal branch of the supreme court, and shall thereafter take the same course as is now provided by law when that officer shall recommend a sentence in any respect more severe than that imposed by the trial judge, and for the consideration of the

Page 114

court, without the necessity of a further defense or hearing, when that officer recommends a lighter sentence.'

This order was amended by an act of the Commission (No. 194), passed August 10, 1901, and is as follows: '(G) No. 194. An Act Conferring Jurisdiction on Justices of the Peace, etc.

'Sec. 1. Every justice of the peace in the Philippine Islands is hereby invested with authority to make preliminary investigation of any crime alleged to have been committed within his municipality, jurisdiction to hear and determine which is by law now vested in the judges of courts of first instance. . . .

'Sec. 4. So much of § 50 of said general order No. 58 as requires courts of first instance, or clerks thereof, to forward to the supreme court or the ministerio fiscal the record of all criminal cases for revision or consideration, except where the death penalty is imposed as the judgment or part of the judgment of such court of first instance, is hereby repealed, and it shall not be necessary to forward to the supreme court or the ministerio fiscal the record, or any part thereof, of any case in which there shall have been an acquittal, or in which the penalty imposed is not death, unless such case shall have been duly appealed, as provided in such order. The records of all cases in which the death penalty shall have been imposed by any court of first instance, whether the defendant shall have appealed or not, shall be forwarded to the supreme court for investigation and judgment, as law and justice shall dictate.'

Courts were established for the islands under an act passed by the Commission June 11, 1901:

'Sec. 2. The judicial power of the government of the Philippine Islands shall be vested in a supreme court, courts of first instance, and courts of justices of the peace, together with such special jurisdictions of municipal courts and other special tribunals as now are or hereafter may be authorized by law. The two courts first named shall be courts of record.

* * * * *

Page 115

'Sec. 16. The jurisdiction of the supreme court shall be of two kinds:

'1. Original; and

'2. Appellate.

'Sec. 17. The supreme court shall have original jurisdiction to issue write of mandamus, certiorari, prohibition, habeas corpus and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law.

'Sec. 18. The supreme court shall have appellate jurisdiction of all actions and special proceedings properly brought to it from courts of first instance, and from other tribunals from whose judgment the law shall specially provide an appeal to the supreme court.

'Sec. 19. The supreme court shall have power to issue writs of certiorari and all other auxiliary writs and process necessary to the complete exercise of its original or appellate jurisdiction.

* * * * *

'Sec. 39. The existing audiencia or supreme court is hereby abolished, and the supreme court provided by this act is substituted in place thereof.

* * * * *

'Sec. 55. The jurisdiction...

To continue reading

Request your trial
439 practice notes
  • Hulsey v. State, CR–13–0357.
    • United States
    • Alabama Court of Criminal Appeals
    • July 10, 2015
    ...of the accused.” Serfass v. United States, 420 U.S. [377] at 391, 95 S.Ct. [1055] at 1064 [ (1975) ], (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904) ).’ ”Money v. State, 138 So.3d 332, 337 (Ala.Crim.App.2012) (quoting Cox v. State, 585 So.2d 182,......
  • People v. Serrato, Cr. 16519
    • United States
    • United States State Supreme Court (California)
    • July 25, 1973
    ...In short, he has no meaningful choice. And as Mr. Justice Holmes observed, with regard to this same matter in Kepner v. United States, 195 U.S. 100, at 135, 24 S.Ct. 797, at page 897, 49 L.Ed. 114: 'Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the ......
  • State v. Karpov, No. 95080-6
    • United States
    • United States State Supreme Court of Washington
    • February 27, 2020
    ...the accused.’ " Serfass v. United States , 420 U.S. 377, 391, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) (quoting Kepner v. United States , 195 U.S. 100, 133, 24 S. Ct. 797, 49 L. Ed. 114 (1904) ); see also State v. Cockrell , 102 Wash.2d 561, 567, 689 P.2d 32 (1984) (double jeopardy cannot ap......
  • Cornelius v. Benevolent Protective Order of Elks, Civ. No. 15150.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • August 2, 1974
    ...intent, be held to prevail over provisions of a different statute more general in its coverage. See, e. g., Kepner v. United States, 195 U.S. 100, 125, 24 S.Ct. 797, 49 L.Ed. 114 (1904)." General Electric Credit Corp. v. James Talcott, Inc., 271 F.Supp. 699, 705 (S.D.N.Y. Third, the legisla......
  • Request a trial to view additional results
436 cases
  • Sumpter v. DeGroote, No. 76-1849
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 1, 1977
    ...offered for the rule is the "continuing jeopardy" theory first advanced by Justice Holmes in dissent to Kepner v. United States, 195 U.S. 100, 134-37, 24 S.Ct. 797, 49 L.Ed. 114 (1904). This theory presupposes that jeopardy attaches at trial and continues through post-trial proceedings, inc......
  • Hulsey v. State, CR–13–0357.
    • United States
    • Alabama Court of Criminal Appeals
    • July 10, 2015
    ...of the accused.” Serfass v. United States, 420 U.S. [377] at 391, 95 S.Ct. [1055] at 1064 [ (1975) ], (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904) ).’ ”Money v. State, 138 So.3d 332, 337 (Ala.Crim.App.2012) (quoting Cox v. State, 585 So.2d 182,......
  • People v. Serrato, Cr. 16519
    • United States
    • United States State Supreme Court (California)
    • July 25, 1973
    ...In short, he has no meaningful choice. And as Mr. Justice Holmes observed, with regard to this same matter in Kepner v. United States, 195 U.S. 100, at 135, 24 S.Ct. 797, at page 897, 49 L.Ed. 114: 'Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the ......
  • State v. Karpov, No. 95080-6
    • United States
    • United States State Supreme Court of Washington
    • February 27, 2020
    ...the accused.’ " Serfass v. United States , 420 U.S. 377, 391, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) (quoting Kepner v. United States , 195 U.S. 100, 133, 24 S. Ct. 797, 49 L. Ed. 114 (1904) ); see also State v. Cockrell , 102 Wash.2d 561, 567, 689 P.2d 32 (1984) (double jeopardy cannot ap......
  • Request a trial to view additional results
1 books & journal articles
  • The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 8, June 2022
    • June 1, 2022
    ...territories than it does in the states, the choice not to do so is also consistent with the Insular Cases. Cf. Kepner v. United States, 195 U.S. 100, 124-25 (1904) (holding that the bar on double jeopardy in the organic act for the Philippines was coextensive with the constitutional bar). F......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT