The guarantees extended by Congress to the Philippine Islands
are to be interpreted as meaning what the like provisions meant
when Congress made them applicable to those islands.
While a complaint on a charge of adultery under the Penal Code
of the Philippine Islands may be fatally defective for lack of
essential averments as to place and knowledge on the part of the
man that the woman was married, objections of that nature must be
taken at the trial, and if not taken, and the omitted averments are
supplied by competent proof, it is not error for the Supreme Court
of the Philippine Islands to refuse to sustain such objections on
While the Supreme Court of the Philippine Islands hears an
appeal as a trial de novo
and has power to reexamine the
law and the facts it does so entirely on the record.
The facts are stated in the opinion.
Page 204 U. S. 471
MR. JUSTICE WHITE delivered the opinion of the Court.
Articles 433 and 434, found in chapter 1 of title IX of the
Penal Code of the Philippine Islands, define and punish the crime
of adultery. The articles referred to are in the margin. [Footnote 1
Page 204 U. S. 472
It is conceded at bar that, under the Philippine law, the
offense of adultery, as defined by the articles in question, is
classed as a private offense, and must be prosecuted not on
information by the public prosecutor, but by complaint on behalf of
an injured party. In the Court of First Instance of Albay, Eighth
Judicial District, Philippine Islands, Adriano Mortiga, the
defendant in error, as the husband of Maria Obleno, filed a
complaint charging her with adultery committed with Vicente Serra,
the other plaintiff in error, who was also charged. The complaint
is in the margin. [Footnote
Page 204 U. S. 473
The defendants were arraigned, pleaded not guilty, were tried by
the court without a jury, and were convicted. The court stated its
reasons in a written opinion, analyzing the testimony, and pointing
out that all the essential ingredients of the crime of adultery, as
defined by the articles of the Penal Code already referred to, were
shown to have been committed. The accused were sentenced to pay
one-half of the costs and to imprisonment for two years, four
months, and one day. The record does not disclose that any
objection was taken to the sufficiency of the complaint before the
trial. Indeed, it does not appear that, by objection in any form,
directly or indirectly, was any question raised in the trial court
concerning the sufficiency of the complaint. An appeal was taken to
the Supreme Court of the Philippine Islands. In that court, error
was assigned on the ground, first, that "the complaint is null and
void because it lacks the essential requisite provided by law,"
and, second and third, because it did not appear from the proof
that guilt had been established beyond a reasonable doubt. The
conviction was affirmed. The assignment of error which was based on
the contention that the conviction was erroneous because the
complaint did not sufficiently state the essential ingredients of
the offense charged was thus disposed of by the court in its
"The objections to the complaint, based upon an insufficient
statement of the facts constituting the offense, cannot be
considered here, because they were not presented in the court
below. United States v. Sarabia,
3 Off. Gaz. No. 29."
The assignments based on the insufficiency of the proof to show
guilt beyond a reasonable doubt were disposed of by an analysis of
the evidence, which the court deemed led to the conclusion that all
the statutory elements of the crime were proven beyond a reasonable
doubt. An application for a rehearing, styled an exception, was
made, in which it was insisted that it was the duty of the court to
consider the assignment based on the insufficiency of the
complaint, since not to do so would be a denial of due process of
law. The rehearing
Page 204 U. S. 474
was refused, and the sentence imposed below was increased to
three years, six months, and twenty-nine days on the ground that
this was the minimum punishment provided for the offense.
The errors assigned on this writ of error, and the propositions
urged at bar to support them, are confined to the assertion that
the refusal of the court below to consider the assignment of error
concerning the insufficiency of the complaint amounted to a
conviction of the accused without informing them of the nature and
character of the offense with which they were charged, and was,
besides, equivalent to a conviction without due process of law. It
is settled that, by virtue of the Bill of Rights enacted by
Congress for the Philippine Islands, 32 Stat. 691, 692, that
guaranties equivalent to the due process and equal protection of
the law clause of the Fourteenth Amendment, the twice in jeopardy
clause of the Fifth Amendment, and the substantial guaranties of
the Sixth Amendment, exclusive of the right to trial by jury, were
extended to the Philippine Islands. It is further settled that the
guaranties which Congress has extended to the Philippine Islands
are to be interpreted as meaning what the like provisions meant at
the time when Congress made them applicable to the Philippine
Islands. Kepner v. United States, 195 U.
For the purpose, therefore, of passing on the errors assigned,
we must test the correctness of the action of the court below by
substantially the same criteria which we would apply to a case
arising in the United States and controlled by the Bill of Rights
expressed in the Amendments to the Constitution of the United
States. Turning to the text of the articles of the Philippine Penal
Code upon which the prosecution was based, it will be seen that an
essential ingredient of the crime of adultery, as therein defined,
is knowledge on the part of the man charged of the fact that the
woman with whom the adultery was committed was a married woman.
Turning to the complaint upon which the prosecution was begun, it
will be at once seen that it was deficient, because it did not
specify the place where the
Page 204 U. S. 475
crime was committed, nor does it expressly state that Vicente
Serra, the accused man, knew that Maria Obleno, the woman accused,
was at the time of the guilty cohabitation, a married woman. It
results that there were deficiencies in the complaint which, if
raised in any form in the trial court before judgment, would have
required the trial court to hold that the complaint was inadequate.
But the question for decision is not whether the complaint, which
was thus deficient, could have been sustained, in view of the
constitutional guaranties, if a challenge as to its sufficiency had
been presented in any form to the trial court before final
judgment, but whether, when no such challenge was made in the trial
court before judgment, a denial of the guaranties of the statutory
Bill of Rights arose from the action of the appellate court in
refusing to entertain an objection to the sufficiency of the
complaint because no such ground was urged in the trial court.
Thus, reducing the case to the real issue enables us to put out of
view a number of decisions of this Court referred to in the margin,
] as well as many
decided cases of state courts referred to in the brief of counsel,
because they are irrelevant, since all the former, and, if not all,
certainly all of the latter, concern the soundness of objections
made in the trial court by the accused to the sufficiency of
indictments or informations.
In Ex Parte Parks, 93 U. S. 18
case was this: the petitioner, Parks, applied to this Court for a
writ of habeas corpus. He had been convicted and sentenced for the
crime of forgery in a district court of the United States. The
ground relied upon for release was that the indictment stated no
offense. The writ was discharged. Speaking through Mr. Justice
Bradley, it was said:
"But the question whether it was or was not a crime within the
statute was one which the district court was competent to decide.
It was before the court and within its jurisdiction. "
Page 204 U. S. 476
"* * * *"
"Whether an act charged in an indictment is or is not a crime by
the law which the court administers [in this case, the statute law
of the United States] is a question which has to be met at almost
every stage of criminal proceedings -- on motions to quash the
indictment, on demurrers, on motions to arrest judgment, etc. The
court may err, but it has jurisdiction of the question. If it errs,
there is no remedy, after final judgment, unless a writ of error
lies to some superior court, and no such writ lies in this
In United States v. Ball, 163 U.
, an attempt was made to prosecute for the second
time one Millard H. Ball, who had been acquitted upon a defective
indictment, which had been held bad upon the proceedings in error
prosecuted by others, who had been convicted and who had been
jointly prosecuted with Ball. Reversing the court below, the plea
of autrefois acquit,
relied on by Ball, was held good. It
was pointed out that the acquittal of Ball upon the defective
indictment was not void, and therefore the acquittal on such an
indictment was a bar. This case was approvingly cited in Kepner
v. United States, 195 U. S. 100
195 U. S. 129
It being, then, settled that the conviction on a defective
indictment is not void, but presents a mere question of error, to
be reviewed according to law, the proposition to be decided is
this: did the court below err in holding that it would not consider
whether the trial court erred because it had not decided the
complaint to be bad, when no question concerning its sufficiency
was, either directly or indirectly, made in that court? Thus, to
understand the proposition is to refute it. For it cannot be that
the court below was wrong in refusing to consider whether the trial
court erred in a matter which that court was not called upon to
consider and did not decide. Undoubtedly, if a judgment of
acquittal had resulted, it would have barred a further prosecution,
despite the defective indictment. Kepner v. United States,
But it is said the peculiar powers of the supreme court in
Page 204 U. S. 477
the Philippine Islands take this case out of the general rule,
since in that court on appeal a trial de novo
is had even
in a criminal case. But, as pointed out in the Kepner
case, whilst that court on appeal has power to reexamine the law
and facts, it does so on the record, and does not retry in the
fullest sense. Indeed, when the power of the court below to review
the facts is considered, that power, instead of sustaining, refutes
the proposition relied on. Thus, the proposition is that the court
should have reversed the conviction because of the contention as to
the insufficiency of the complaint, when no such question had been
raised before final judgment in the trial court, and when, as a
necessary consequence of the facts found by the court, the
testimony offered at the trial without objection or question in any
form established every essential ingredient of the crime. In other
words, the contention is that reversal should have been ordered for
an error not committed, and when the existence of injury was
impossible to be conceived, in view of the opinion which the court
formed on the facts, in the exercise of the authority vested in it
on that subject.
MR. JUSTICE HARLAN dissents.
"Art. 433. Adultery shall be punished with the penalty of
prision correctional in its medium and maximum degrees."
"Adultery is committed by the married woman who lies with a man
not her husband, and by him who lies with her knowing that she is
married, although the marriage be afterwards declared void."
"Art. 434. No penalty shall be imposed for the crime of adultery
except upon the complaint of the aggrieved husband."
"The latter can enter a complaint against both guilty parties,
if alive, and never, if he has consented to the adultery or
pardoned either of the culprits."
"The United States of America"
"Philippine Islands, Eighth Judicial District"
"In the Court of First Instance of Albay"
"The United States and Macario Mercades,"
"in Behalf of Adriano Mortiga"
"Vicente Serra and Maria Obleno"
"The undersigned, a practicing attorney, in behalf of Adriano
Mortiga, the husband of Maria Obleno, accuses Vicente Serra and the
said Maria Obleno of the crime of adultery, committed as
"That on or about the year 1899, and up to the present time, the
accused, being both married, maliciously, criminally, and illegally
lived as husband and wife, and continued living together up to the
present time, openly and notoriously, from which illegal
cohabitation two children are the issue, named Elias and Jose
Isabelo, without the consent of the prosecuting witness, and
contrary to the statute in such cases made and provided."
"(Signed) Macario Mercades"
"Attorney at Law
"(Signed) Adriano Mortiga"
"Albay, February 24, 1904."
"Sworn and subscribed to before me this 24th day of February,
"(Signed) F. Samson, Clerk
United States v.
17 Wall. 168, 84 U. S. 174
United States v. Carll, 105 U. S. 611
Dunbar v. United States, 156 U. S. 185
Cochran v. United States, 157 U.
; Markham v. United States, 160 U.