The retention by the prosecuting authorities, without using it
on the trial, of a statement made by the accused does not amount to
compelling him to be a witness against himself within the
provisions of Chap. 5 of the Philippine Act of Congress of July 1,
1902, 32 Stat. 691.
The Supreme Court of the Philippine Islands tries a criminal
case on the record de novo,
and if it avoids an error
which may have been committed by the Court of First Instance, the
judgment will not be reversed by this Court on account of such
error, and so held in this case in which the Court of First
Instance took into consideration the fact that accused did not
offer to testify on his own behalf, but the Supreme Court, on the
accused's own appeal, declared that it did not take that fact into
consideration, but rendered its decision on the proofs.
7 Phil. 457
The facts are stated in the opinion.
Page 216 U. S. 306
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error was convicted of the crime of murder in the
Court of First Instance of the Province of Cebu, Philippine
Islands, and sentenced to twenty years' imprisonment, which was
reduced to seventeen years by the Supreme Court.
The assignments of error are as follows:
"1. The accused has been compelled to be a witness against
himself, in violation of Article V of the law of Congress of July
"2. The fact that the accused did not offer himself as a witness
in his own favor has been used to his prejudice, in violation of
his right to remain silent until his guilt be established by the
evidence beyond a reasonable doubt. "
Page 216 U. S. 307
"3. The evidence does not show the guilt of accused of the crime
imputed to him beyond a reasonable doubt."
The argument to support the first assignment of error is not
very tangible. It is based upon an affidavit of defendant that he
was subpoenaed as a witness, and obeyed by going to the fiscal's,
where he answered questions put to him without knowing that he had
a right to refuse, or being notified that he had such right, and
not knowing that "the object of securing his statement was in order
to search for proof against him." The affidavit also states that he
was not represented by counsel, and did not know that he had a
right to consult a lawyer. Motion was made, presumably based on the
affidavit, for an order to the fiscal to return to the defendant
the statement, together with all copies of the same, and that the
fiscal be prohibited from using the statement in any manner
whatever. Nothing seems to have been done with that motion, and
subsequently it was repeated and denied on the ground
"that it was not a proper time to make such motion, as the court
could not then decide on the admissibility of proofs which had not
yet been offered in the cause."
An exception was entered.
It is not contended that the statement was afterwards used in
any way, but the action of the court is urged nevertheless as an
error "so grave and so material," to use counsel's words, "as to
call for a new trial."
The argument to support it is based on suppositions of what
might have been done, and the potency of the statement in the hands
of the prosecuting officer. "It left the defendant open, it is
said, to the fire of a masked battery." But the law has no measure
to apply to such a situation. Defendant was certainly not disabled
from telling the truth in other statements if he wished to make
them, and to be able not to tell the truth can hardly be urged as a
legal and constitutional right. The assignment of error therefore
is not well taken.
The second assignment of error is that the fact that the
Page 216 U. S. 308
defendant did not offer himself as a witness was used against
him. To support this contention, certain remarks of the judge of
the trial court in delivering sentence upon the defendant are
quoted. The court said:
"The prosecution has presented an abundance of proof which, in
case the court should give it full credence, would establish the
guilt of the accused beyond all reasonable doubt. On the other
hand, the defense has presented very little direct proof; the
accused did not use his right to testify in his own favor, and no
eyewitness has testified favorably to him. The defense has
practically limited itself to insisting on: (1) alleged
contradictions between the various witnesses of the prosecution
relating to the details of identical facts or happenings related by
them; (2) mistakes which they claim to be essential, in the
testimony of the witnesses for the prosecution with respect to
distances and relative positions of persons and objects connected
with the case; (3) the expert testimony of two physicians that the
deceased could not have died as the result of a wound received in
the manner stated by the witnesses for the prosecution."
An analysis of this language is made by counsel, and its
relation to the general character of the evidence is discussed, and
the conclusion deduced that the trial court urged three arguments
to sustain its judgment:
"First, paucity of proof in behalf of the defendant. Second, his
failure to testify in his own favor. Third, his failure to get any
eyewitness to the shooting, to rebut evidence of the Filipinos who
claim to have been eyewitnesses."
And to this summary, which, it is urged, demonstrates that the
trial court considered in determining the guilt of defendant, that
he failed to take the stand in his own behalf, there is added the
comment of the Supreme Court of the Islands in its review of the
case, or rather, in denying a motion for a new trial, after its
decision of the case. Upon the first consideration of the case in
the Supreme Court, no assignment of error based on the point was
made. It was raised for the first time in what is styled "Exception
Page 216 U. S. 309
Judgment, and Motion for a New Trial," in which he excepted to
the judgment rendered by the Supreme Court, and prayed that it be
set aside and a new trial granted him. The reasons given were as
"I. The defendant has been compelled to testify against himself,
in violation of Art. No. 5 of the law of Congress of July 1, 1902,
in the following manner:"
"The accused, taking advantage of the right conceded him in the
third paragraph of Article 15 of the General Orders, No. 58, did
not testify in the Court of First Instance, and said court, in its
judgment, considered this circumstance as prejudicial to the
defendant, and the attorney general adduced the same circumstance
in his brief in this court in the following words:"
" No direct proof was presented by the defense to contradict the
facts stated by the witnesses for the prosecution; nor did the
defendant himself testify in his own favor to deny the grave crime
with which he is charged."
"And to overcome as far as possible the effect of this illegal
procedure so prejudicial to the accused, his counsel in this court,
speaking in his name, felt himself obliged to state to the court
that the defendant did not go on the witness stand because he did
not remember anything about the occurrence; which circumstance was
considered by the court as a fact prejudicial to the defendant and
appellant in the following words:"
" The defendant, a lieutenant of constabulary, in command at the
Parian Barracks at Cebu, being intoxicated, borrowed a carromata,
which was without lights, from a friend, and was found wandering
about the streets therein by a municipal policeman named Almonte,
who at his request, drove him to the barracks. As to subsequent
occurrences, we have not the benefit of his recollection, and must
rely on the testimony of the witnesses for the prosecution and the
circumstances of the case."
To which it was replied:
Page 216 U. S. 310
"The court having heard the petition of Attorney Kincaid,
praying for a new trial of case No. 3176, the United States v.
in which a decision was rendered by this court on
the ninth of the present month of February, 1907, said that,
although the fact that the defendant declined or failed to testify
as a witness was taken into consideration by the Court of First
Instance, this court, in deciding the cause, did not take said fact
into consideration, but rendered the decision in accordance with
the proofs presented at the trial, and therefore the new trial
solicited is denied."
Defendant puts aside the disclaimer of the Supreme Court as
unimportant in an argument which is certainly difficult to
represent if not to follow. He appealed to the Supreme Court to
review the judgment of the lower court. He made a motion for a new
trial in the Supreme Court, and that being denied, he now urges not
error committed in the Supreme Court, but error committed in the
trial court. This is worked out and attempted to be justified by an
argument that it may be we do not understand. It is said that the
Supreme Court misapprehended the "function conferred upon it by
Congress and the Philippine Commission in relation to reviewing the
decisions of courts of first instance." That it seemed to be of
opinion that it had "the same authority in this regard as was
possessed by its Spanish predecessor, the audiencia,
"passed on the decision of the court below about as a reviewing
court would pass on an equity proceeding upon written testimony
submitted by affidavits and interrogatory depositions."
And by doing so, counsel further urge that the Supreme Court did
not have before it what they describe as "the supremely human
element -- the appearance of the witnesses and their manner on the
stand, etc.," and, not having such element, could not judge of the
effect of the evidence independently of the silence of the
defendant, and could not determine therefore how much the error of
the trial court, in considering such silence, controlled its
judgment. The answer is that the Supreme Court had the power
Page 216 U. S. 311
to review the case and consider all that was necessary to the
exercise of such power. That power was invoked by defendant, and he
secured from its exercise a reduction of three years in his
sentence. And Trono v. United States, 199 U.
, may be cited as an answer to the contention. In
that case, the power of review which the Supreme Court possessed
over the judgment of the trial court was exerted to the extent of
reversing a judgment and sentence for assault, and rendering a
judgment for homicide. Trono v. United States
little comment. It declares the relation of the courts and the
scheme of procedure existing in the Philippine Islands, and brings
the case at bar to the simple proposition, when stripped of
ingenious suggestions, that an error which was made (if error was
made, of which we express no opinion) at the trial in the Court of
First Instance, and which was not repeated in the Supreme Court, is
not a ground of legal complaint.
The third assignment of error is not discussed by counsel. It
is, however, manifestly without merit.
MR. JUSTICE HARLAN dissents.