Protection against double jeopardy was by § 5 of the Act of July
1, 1902, c. 1369, 32 Stat. 691, carried to the Philippine Islands
in the sense and in the meaning which it had obtained under the
Constitution and laws of the United States.
Kepner v. United
States, 195 U. S. 100.
The protection intended and specifically given is against second
jeopardy for the same offense, and where separate offenses arise
from the same transaction, the protection does not apply.
Page 220 U. S. 339
A single act may be an offense against two statutes, and if each
statute requires proof of an additional fact which the other does
not, an acquittal or conviction under either statute does not
exempt the defendant from prosecution or conviction under the
other.
Carter v. McClaughry, 183
U. S. 367.
In this case,
held that one convicted and punished
under an ordinance prohibiting drunkenness and rude and boisterous
language was not put in second jeopardy by being subsequently tried
under another ordinance for insulting a public officer, although
the latter charge was based on the same conduct and language as the
former. They were separate offenses, and required separate proof to
convict.
Grafton v. United States, 206 U.
S. 333, distinguished.
The facts, which involve the construction of the provisions in
the Philippine Island Act of July 1, 1902, as to second jeopardy,
are stated in the opinion.
Page 220 U. S. 340
MR. JUSTICE DAY delivered the opinion of the Court.
This case presents the single question whether the plaintiff in
error, by reason of the proceedings hereinafter
Page 220 U. S. 341
stated, has been twice in jeopardy for the same offense.
Gavieres, plaintiff in error, was charged, convicted, and
sentenced in the court of first instance of the City of Manila,
Philippine Islands, of a violation of Article 257 of the Penal Code
of the Philippine Islands, which provides:
"The penalty of
arresto mayor shall also be imposed on
those who outrage, insult, or threaten, by deed or word, public
officials or agents of the authorities, in their presence, or in a
writing addressed to them."
Gavieres was charged under this article with the crime of
calumniating, outraging, and insulting a public official in the
exercise of his office by word of mouth and in his presence. Upon
conviction, he was sentenced to four months of
arresto
mayor and to pay the cost of the prosecution. He had been
previously convicted, because of the same words and conduct, under
Article 28, § 2 of the ordinance of the City of Manila, which
provides:
"No person shall be drunk or intoxicated or behave in a drunken,
boisterous, rude, or indecent manner in any public place open to
public view; or be drunk or intoxicated or behave in a drunken,
boisterous, rude, or indecent manner in any place or premises to
the annoyance of another person."
Section 5 of the Act of Congress of July 1, 1902, 32 Stat. 691,
c. 1369, provides: "No person, for the same offense, shall be twice
put in jeopardy of punishment."
This statute was before this Court in the case of
Kepner v.
United States, 195 U. S. 100, and
it was there held that the protection against double jeopardy
therein provided had, by means of this statute, been carried to the
Philippine Islands in the sense and in the meaning which it had
obtained under the Constitution and laws of the United States.
It is to be observed that the protection intended and
specifically given is against second jeopardy for the same
Page 220 U. S. 342
offense. The question therefore is are the offenses charged, and
of which a conviction has been had in the municipal court and in
the court of first instance, identical? An examination of the
ordinance shows that the gist of the offense under it was behaving
in an indecent manner in a public place, open to public view. It
was not necessary to charge or prove under the municipal ordinance
any outrage, insult, or threat to a public official or agent of the
authorities. The charge contained in the record shows that, under
the municipal ordinance, the plaintiff in error was charged with
willfully and unlawfully, in a public street car and in the
presence of numerous persons, including ladies, conducting himself
in a reckless, indecent, and discourteous manner.
It is true that the acts and words of the accused set forth in
both charges are the same, but in the second case, it was charged,
as was essential to conviction that the misbehavior in deed and
words was addressed to a public official. In this view, we are of
opinion that, while the transaction charged is the same in each
case, the offenses are different. This was the view taken in
Morey v. Commonwealth, 108 Mass. 433, in which the Supreme
Court of Massachusetts, speaking by Judge Gray, held:
"A conviction or acquittal upon one indictment is no bar to a
subsequent conviction and sentence upon another unless the evidence
required to support a conviction upon one of them would have been
sufficient to warrant a conviction upon the other. The test is not
whether the defendant has already been tried for the same act, but
whether he has been put in jeopardy for the same offense. A single
act may be an offense against two statutes, and if each statute
requires proof of an additional fact which the other does not, an
acquittal or conviction under either statute does not exempt the
defendant from prosecution and punishment under the other. "
Page 220 U. S. 343
This case was cited with approval in
Carter v.
McClaughry, 183 U. S. 367,
183 U. S. 395.
In the
Carter case, speaking of the identity of offenses
charged, this Court said:
"The offenses charged under this article were not one and the
same offense. This is apparent if the test of the identity of
offenses, that the same evidence is required to sustain them, be
applied. The first charge alleged 'a conspiracy to defraud,' and
the second charge alleged 'causing false and fraudulent claims to
be made,' which were separate and distinct offenses, one requiring
certain evidence which the other did not. The fact that both
charges related to and grew out of one transaction made no
difference."
In
Burton v. United States, 202 U.
S. 344,
202 U. S. 381,
Bishop's Criminal Law, Vol. 1, § 1051, was quoted with approval to
the effect, "Jeopardy is not the same when the two indictments are
so diverse as to preclude the same evidence from sustaining both."
In that case, this Court said, speaking of a plea of
autre fois
acquit:
"It must appear that the offense charged, using the words of
Chief Justice Shaw, 'was the same in law and in fact. The plea will
be vicious if the offenses charged in the two indictments be
perfectly distinct in point of law,
however nearly they may be
connected in fact.'"
Applying these principles, it is apparent that evidence
sufficient for conviction under the first charge would not have
convicted under the second indictment. In the second case, it was
necessary to aver and prove the insult to a public official or
agent of the authorities, in his presence or in a writing addressed
to him. Without such charge and proof, there could have been no
conviction in the second case. The requirement of insult to a
public official was lacking in the first offense. Upon the charge,
under the ordinance, it was necessary to show that the offense was
committed in a public place, open to public view; the insult to a
public official need only be in his
Page 220 U. S. 344
presence or addressed to him in writing. Each offense required
proof of a fact which the other did not. Consequently a conviction
of one would not bar a prosecution for the other.
A minority of the Supreme Court of the Philippine Islands was of
opinion that there was double jeopardy in the case at bar upon the
authority of the case of
Grafton v. United States,
206 U. S. 333. In
that case, the Supreme Court of the Philippine Islands held that a
soldier of the United States Army might be prosecuted for homicide
before a military court-martial and also before a civil court
exercising authority in the islands. That judgment was reversed and
the conviction before the military court-martial held to bar a
prosecution for the same homicide in the civil courts of the
Philippine Islands. It appeared that Grafton had been acquitted of
the unlawful homicide of a Filipino by a duly convened
court-martial having jurisdiction of the offense. After acquittal,
he was charged in the Court of First Instance of the Province of
Iloilo with the crime of assassination in committing the same
homicide. He was convicted, notwithstanding his plea of former
jeopardy, of infraction of Article 404 of the Penal Code, of the
crime of homicide in killing the Filipino.
This Court held that the court-martial had full jurisdiction to
try the accused for the offense; that it derived its authority from
the same governmental power as did the civil court in the
Philippine Islands, and that, if the conviction in the civil court
were allowed to stand, the accused would be for the second time in
jeopardy for the same homicide. MR. JUSTICE, HARLAN, delivering the
opinion of the Court, said:
"But, passing by all other questions discussed by counsel, or
which might arise on the record, and restricting our decision to
the above question of double jeopardy, we adjudge that,
consistently with the above Act of 1902, and for the reasons
stated, the plaintiff in error, a soldier
Page 220 U. S. 345
in the Army, having been acquitted of the crime of homicide,
alleged to have been committed by him in the Philippines, by a
military court of competent jurisdiction, proceeding under the
authority of the United States, could not be subsequently tried for
the same offense in a civil court exercising authority in that
territory."
In the case at bar, the offense of insult to a public official,
covered by the section of the Philippine Code, was not within the
terms of the offense or prosecution under the ordinance. While it
is true that the conduct of the accused was one and the same, two
offenses resulted, each of which had an element not embraced in the
other.
The judgment of the Supreme Court of the Philippine Islands is
affirmed.
Affirmed.
Dissenting, MR. JUSTICE HARLAN.