Diaz v. United States

223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500, 1912 U.S. LEXIS 2246

• Court: Supreme Court of the United States
• Decided: February 19, 1912
• Docket: 384
• Status: Published

Opinions

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 of July 1, 1902,. 32 Stat. 691, c. 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. 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 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. Commonwealth v. Roby, 12 Pick. 496; State v. Littlefield, 70 Maine, 452; Johnson v. State, 19 Tex. App. 453. 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 Phil. 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, and 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 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 California, 225, 230; Diversy v. Kellogg, 44 Illinois, 114, 121. 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 Massachusetts, 404, 408; Sherwood v. Sissa, 5 Nevada, 349, 355; United States v. McCoy, 193 U. S. 593, 598; Schlemmer v. Buffalo &c. Ry. Co., 205 U. S. 1, 9; Neal v. Delaware, 103 U. S. 370, 396; Foster v. United States, 178 Fed. Rep. 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 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 Alabama, 354; Williams v. State, 61 Wisconsin, 281; State v. Polson, 29 Iowa, 133; of 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 Missouri, 644, 648; State v. Fooks, 65 Iowa, 452; State v. Mortensen, 26 Utah, 312; State v. Lewis, 31 Washington, 75, 88; or the deposition of such a witness taken within or without the jurisdiction, Butler v. State, 97 Indiana, 378; State v. Vanella, 40 Montana, 326; Wightman v. People, 67 Barb. 44; People v. Guidici, 100 N. Y. 503, 508; People v. Murray, 52 Michigan, 288. 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 (p. 290):

“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 benefit of the stipulation, and, for aught we can know, it may have been made chiefly in his interest. . . . The defendant undoubtedly had a constitutional right to be confronted with his witnesses. He waived that right in this case, apparently for his own supposed advantage and to obtain evidence on his own behalf. It would have been a mere impertinence for the court to have interfered and preeluded this stipulation being acted upon. But it would have been more than an impertinence.; it would have been gross error. And it would be palpable usurpation of power for us now to set aside a judgment for a neglect of the court not at the time complained of, but in respect to something where any other course would have been plain error. Under the view taken by the respondent it would seem that when the evidence had been obtained under his stipulation, the court was put in position where it was impossible to avoid error; for if the evidence was received, he might complain, as he does now, that his constitutional right was violated, and if the court refused to receive it when he was consenting, the respondent would be entitled to have the conviction set aside for that error.”

The view that this right may be waived also was recognized by this court, in Reynolds v. United States, 98 U. S. 145, 158, where testimony given' on a first trial was held admissible on a second, even agáinst a timely objection, because the witness was absent by the wrongful act of the accused; In that case it was said: .

“The Constitution.gives the accused the right to a trial at which he should be confronted' with the’witnesses against him; but if a witness is absent by his own wrongful procurement;, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being com fronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist, on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.” '

As here the accused, by his voluntary act, placed in evidence the testimony disclosed by the record in question, and thereby sought to obtain an advantage from it, he waived his right of confrontation as to that testimony and cannot now complain of its consideration.

It also is objected that the accused was wrongly convicted in that the trial proceeded in part in his absence. The facts in this connection are these: The accused was represented and heard by counsel at every stage o.f the proceedings. He also was present in person at all the proceedings preliminary to the trial and at the time it was begun and during the major part of it. But on two occasions, in the latter part of the trial, he voluntarily absented himself and sent to the court a message expressly consenting that the trial proceed in his absence, which was done. On these occasions two witnesses for the Government were both examined and cross-examined. No complaint grounded upon his absence was made in the trial court or in the Supreme Court of the Philippines; and the objection now made is, not that he did not voluntarily waive his right to be present, if he could waive it, but that it could not be waived, and that the court was therefore without power to proceed in his absence.

The Philippine laws, Comp. Stat. 1907, pp. 1004, 1005, 1006, 1009, contain the following provisions, bearing upon the presence of the accused at the proceedings upon a charge for felony:

"Sec. 3270. In all criminal prosecutions the defendant. shall be entitled, (a) to appear and defend in person and by counsel at every stage of the proceedings. . . .

"Sec. 3271. . . . If the charge is for felony {delito), the defendant must be personally present at the arraignment; . . .

"Sec. 3280. A plea of guilty can be put in only by the defendant himself in open court. . . .

"Sec. 3296. The defendant must be personally present at the time of pronouncing judgment if the conviction is for a felony; . . .”

Not only is there such a difference in the terms of these sections as naturally implies a difference in meaning, but it is evident that unless the first means something less than that the accused must be present at every stage of the proceedings there was no occasion for the provisions quoted from the others, and also that if the terms used in the others were deemed essential to express the thought that the accused must be present at particular stages of the proceedings, like terms would have been employed in the first had it been intended to make his presence equally requisite at other stages. It, therefore, is evident that the effect of these sections, when their differing terms are considered, is to make the presence of the accused indispensable at the arraignment, at the time the plea is taken, if it be one of guilt, and when judgment is pronounced, and to entitle him to be present at all other stages of the proceedings, but not to make his presence thereat indispensable. As here it does not appear, and is not claimed, that the accused was absent at any of the times when his presence was thus made indispensable, and as his absence during the latter part of the trial was not only voluntary, but coupled with an express consent that it should proceed in the presence of his counsel, as was done, it is plain that there was no infraction of the Philippine laws in that regard.

We are thus brought to the question whether the provision in § 5 of the Philippine Civil Government Act, securing to the accused in all criminal prosecutions “the right to be heard by himself and counsel,” makes his presence indispensable at every stage of the trial, or invests him with a right which he is always free to assert but which he also may waive by his voluntary act. Of course if that provision makes his presence thus indispensable, it is of no moment that" the Philippine laws do not go so far, for they cannot lessen its force or effect. An identical or similar provision is. found in the'constitutions of the several States, and its substantial equivalent is embodied in the Sixth Amendment to the Constitution of the United States. It is the right which these • constitutional provisions secure to persons accused of crime in this country that was carried to the Philippines by the congressional enactment, and, therefore, according to a familiar rule, the prevailing course of decision here may and should be accepted as determinative of the nature and measure of the right there. Kepner v. United States, 195 U. S. 100, 124.

As the offense in this instance was a felony, we may put out of view the decisions dealing with this right in cases of misdemeanor. In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Fight v. State, 7 Ohio, pt. 1, 181; Wilson v. State, 2 Oh. St. 319; McCorkle v. State, 14 Indiana, 39, 44; Hill v. State, 17 Wisconsin, 675; Stoddard v. State, 132 Wisconsin, 520; Sahlinger v. People, 102 Illinois, 241; Gallagher v. People, 211 Illinois, 158; Barton v. State, 67 Georgia, 653; Robson v. State, 83 Georgia, 166; Price v. State, 36 Mississippi, 531; Gales v. State, 64 Mississippi, 105; State v. Ricks, 32 La. Ann. 1098; State v. Perkins, 40 La. Ann. 210; State v. Kelly, 97 N. Car. 404; Lynch v. Commonwealth, 88 Pa. St. 189; Gore v. State, 52 Arkansas, 285; State v. Hope, 100 Missouri, 347; Frey v. Calhoun Circuit Judge, 107 Michigan, 130; People v. Mathews, 139 California, 527; State v. Way, 76 Kansas, 928; Commonwealth v. McCarthy, 163 Massachusetts, 458; United States v. Davis, 25 Fed. Cas. 773; United States v. Loughery, 26 Fed. Cas. 998; Falk v. United States, 15 App. D. C. 446, 454; S. C., 181 U. S. 618.

The reasoning upon which this rule of decision rests is clearly indicated in Barton v. State, supra, where it is said by the Supreme Court of Georgia:

“ It is the right of the defendant in cases of felony . . . to be present at all stages of the trial — especially at the rendition of the verdict, and if he be in such custody and confinement ... as not to be present unless sent for and relieved by the court, the reception of the verdict during such compulsory absence is so illegal as to necessitate the setting it aside. . . . The principle thus ruled is good sense and sound law; because he cannot exercise the right to be present at the rendition of the verdict when in jail, unless the officer of the court brings him into the court by its order.

“But the case is quite different when, after being present through the progress of the trial and up to the dismissal of the jury to their room, he voluntarily absents himself from the court room where he and his bail obligated themselves that he should be. . . . And the absolute necessity of the distinction, or the abolition of the continuance of the bail when the trial begins, is seen, when it is considered that otherwise there could be no conviction of any defendant unless he wished to be present at the time the verdict is rendered.”

True, in that case the defendant was absent only at the reception of the verdict, but the decisions, as also the reasoning upon which they proceed, embrace absences at other stages of the trial. In Falk v. United States, supra, the accused, who was at large on bail, was present when the trial was begun and during the taking of a portion of the evidence for the Government, and then fled the jurisdiction. He was called and defaulted, and the trial proceeded in his absence, the remaining evidence being taken and a verdict of guilt returned. Subsequently he was apprehended, and sentence was then imposed, notwithstanding his objection that the trial had proceeded in his absence. In affirming the judgment the Court of Appeals, speaking through Mr. Justice Morris, said:

(p. 454) “It does not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. For by the statute (Rev. Stat. of U. S. Sec. 1015) he is entitled as a matter of right to be enlarged upon bail 'in all criminal cases where the offense is not punishable by death;’ and, therefore, in all such cases he may by absconding prevent a trial. This would be a travesty of justice which could not be tolerated; and it is not required or justified by any regard for the right of personal liberty. On the contrary, the inevitable result would be to abridge the right of personal liberty by abridging or restricting the right now granted by the statute to be abroad on bail until the verdict is rendered. And this the counsel for the appellant appear candidly to admit. But we do not think that any rule of law or constitutional principle leads us to any conclusion that would be so .disastrous as well to the administration of justice as to the true interests of civil liberty. .

(p. 460) “The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. And yet this would be precisely what it would do if it permitted an escape from prison, or an absconding from the jurisdiction while at large on bail, during the pendency of a trial before a jury, to operate as a shield. ”

But it is said that the question has been ruled otherwise by this court in Hopt v. Utah, 110 U. S. 574; Lewis v. United States, 146 U. S. 370; Schwab v. Berggren, 143 U. S. 442, and Thompson v. Utah, 170 U. S. 343. We think this is not the import of those cases. In each the accused was in custody, charged with a capital offense, and was sentenced to death. In the first, a part of the trial was had in his absence notwithstanding the territorial statute declared that he “must be personally present.” He did not object at the time, and it subsequently was claimed that, by his silence, he had consented to what was done. But this court held otherwise, saying: “That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods.” In the second case, “the prisoner was not'brought face to face with the jury until after the challenges had been made and the selected jurors were brought into the box to be sworn,” and he excepted at the time to the mode in which the challenges were required to be made. The ruling in this court was that the making of the challenges was an essential part of the trial, and that it was the right of the accused to be brought face to face with the jurors when the challenges were made. The other two cases are even less in point. In one the question was, whether the presence of the accused was essential in proceedings on error in an appellate court, and it was held that it was not essential. And in the other the question was, whether, when the applicable law contemplated that the accused should be tried before a tribunal composed of a court and a jury of twelve, he could by his silence or consent authorize a tribunal differently composed, and not recognized by law, to try him; and it was held that he could not.

We conclude that the Philippine laws before quoted accord to one charged with a felony the full right expressed in the congressional enactment, as that right was recognized and understood in this country at the time it was carried to the Philippines, and that in what was done in the present case there was no infringement of it.

Lastly, it is insisted that the 'evidence was inadequate to warrant the conviction. The trial was to the court without a jury, as is permitted in the Philippines, and both the trial court and the Supreme Court of the Islands concurred in finding the accused guilty under the evidence. Of course, these concurring findings are entitled to great respect. Nevertheless, following the rule recognized inWiborg v. United States, 163 U. S. 632, 658, and Clyatt v. United States, 197 U. S. 207, 222, we have attentively examined the evidence as set forth in the record and discussed in the opinions of the Philippine courts, and are clearly of opinion that the conviction was .warranted by it.

Judgment affirmed.