Under § 5 of the Act of July 1, 1902, c. 1369, 32 Stat. 691,
unless action taken by the Supreme Court of the Philippine Islands
to supply omissions in the record violates the Constitution or a
statute of the United States, this Court cannot disturb the
There is no valid objection based on the Constitution of the
United States to the practice of the Supreme Court of the
Philippine Islands adopted in this case for determining in what
form it will accept the record of the court below.
The provision in § 5 of the Philippine act of July 1, 1902, c.
1369, 32 Stat. 691, that in all criminal prosecutions, the accused
shall meet the witnesses face to face, is substantially the
provision of the Sixth Amendment, is intended thereby that the
charge shall be proved only by such witnesses as meet the accused
at the trial face to face and give him an opportunity for
cross-examination. It prevents conviction by ex parte
The "face to face" provision of the Philippine Bill of Rights
does not prevent the judge and clerk of the trial court from
certifying as additional record to the appellate court what
transpired on the trial of one convicted of a crime without the
accused's being present when the order was made.
Although due process of law requires the accused to be present
at every stage of the trial, it does not require accused to be
present in an appellate court where he is represented by counsel
and where the only function of the court is to determine whether
there was prejudicial error below.
Objections as to form and verification of pleading must be taken
by accused before pleading general issue.
The Bill of Rights of the Philippine Islands does not require
convictions to be based on indictment, nor does due process of law
require presentment of an indictment. Hurtado v.
California, 110 U. S. 516
In the absence of legislation by Congress, there is no right in
the Philippine Islands to require trial by jury in criminal cases.
Dorr v. United States, 195 U. S. 138
11 Phil. 4 affirmed.
Page 221 U. S. 326
The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of of the court:
This is a writ of error to the Supreme Court of the Philippine
Islands to review a proceeding in which the plaintiffs in error,
Louis A. Dowdell and Wilson W. Harn, together with one Charles H.
MacIlvaine, were convicted in the Court of First Instance of the
Philippine Islands upon an amended complaint which charged that the
three persons named, as inspectors and lieutenants of the
Philippine Constabulary, in the Province of Samar, Philippine
Islands, conspired together to abstract, steal, and convert to
their own use certain public funds in the custody and control of
Dowdell as supply officer, and guarded by Harn as officer of the
day; that, in pursuance of the conspiracy, the three defendants,
with the intent and purpose of stealing, and converting the same to
their own use, unlawfully, feloniously, and willfully removed the
same from the office of the Philippine Constabulary to the
residence of the said Harn in Catbalogan, in said province, and did
there conceal the same, and during the night, in pursuance of said
conspiracy, and for the purpose of concealing the evidence of their
crime, and of deceiving their superior officers concerning the
disappearance of said public funds, did take and remove the safe in
which said funds had been kept in the office of the Philippine
Constabulary, and caused the same to be taken and conveyed out into
the bay adjacent and there sunk in the waters of
Page 221 U. S. 327
the bay. The public funds abstracted and taken consisted of
Philippine coin and paper currency of the value of 9,971 pesos and
26 centavos, equivalent in value to 49,856 pesetas, in violation of
paragraph 3 of article 390 of the Philippine Penal Code.
The accused were convicted, and the present plaintiffs in error
sentenced to imprisonment to six years and a day. Plaintiffs in
error thereupon took an appeal to the Supreme Court of the
Philippine Islands. In that court, they were sentenced to eight
years and one day imprisonment.
The case is brought here under § 10 of the Act of July 1, 1902,
32 Stat. 691, c. 1369, giving this Court the right to review,
revise, reverse, modify or affirm final judgments or decrees of the
Supreme Court of the Philippine Islands in which the Constitution
or any statute, treaty, title, right, or privilege of the United
States is involved.
In the Supreme Court of the Philippine Islands, the Attorney
General asked that the case be sent back to the Court of First
Instance for a new trial, because it did not appear that defendants
had pleaded to the complaint, but the court overruled this
application, and thereupon the court made the following order:
That the clerk of the Court of First
Instance of Samar be, and he is hereby, directed to send forthwith
to this Court a certified copy of all entries in any book in his
office referring to the case of the United States v. Louis A.
Dowdell and Wilson W. Harn,
and particularly of any entry
relating to the arraignment of the defendants and to their plea. He
is further directed to at once send to this Court a certificate as
to whether he was present at the separate trial of each of the
defendants, Dowdell and Harn, and, if so, whether each or both of
them were present at such trial, and the Hon. W. F. Norris, the
Page 221 U. S. 328
tried the case, is hereby directed to send to this court a
certificate showing whether the defendants and each of them were
present during the trial of said cause against Louis A. Dowdell and
Wilson W. Harn."
To this order, Judge Norris, judge of the Court of First
Instance, made return in which he stated that each of the
defendants, now plaintiffs in error, was present in open court
during the entire time of trial, from the calling of the case until
after sentence was pronounced. The judge said he was unable to say
whether there had been a formal arraignment or not. The clerk of
the Court of First Instance certified a record of the proceedings
in court, in which it appears that the defendants were asked
whether they pleaded guilty or not guilty of the crime of which
they were charged, and answered that they pleaded not guilty.
The official reporter of the court certified that his notes of
the proceedings showed that the plaintiffs in error were arraigned,
waived reading of the complaint, and pleaded not guilty. The
certificate of the reporter was signed by him as court reporter of
the Twelfth Judicial District, and the judge of that district
certified that the reporter was the duly appointed, qualified, and
acting reporter of the district. The reporter's certificate adds
nothing to that which the clerk certified.
The first six assignments of error cover objections to this
action of the court in amending its record, and to the want of
presence of the accused, and the failure to show by the record the
arraignment of the accused, their plea to the complaint, and their
presence during the trial.
If the Supreme Court of the Philippine Islands, in taking the
action referred to for supplying the record of omissions, did not
violate the Constitution or any statute of the United States, then
we cannot disturb the judgment below on these assignments of error.
It is contended that the court erred in taking the statement of the
judge of the
Page 221 U. S. 329
Court of First Instance without the knowledge or consent of the
plaintiffs in error, that the statement was not sworn to, that the
plaintiffs in error were not given the opportunity to meet the
witnesses face to face, or to be confronted with the witnesses, and
therefore such statement was received in violation of Article Six
of the Amendments to the Constitution of the United States, and § 5
of the Act of Congress of July 1, 1902, 32 Stat. 691, c. 1369.
A like objection is made to the statement certified by the clerk
of the Court of First Instance, and because his statement is not a
certified copy of the minutes, or any part thereof, of the court,
was not sworn to, and had no seal of the court attached.
As to the objection of the lack of oath to the certificates of
the judge and clerk, and absence of a seal on the clerk's
certificate of the proceedings, questions of that kind, where the
court is correcting a record before it as an appellate tribunal,
are addressed to the court making the order, which may determine
for itself in what form it will accept such record. At least there
is no valid objection to such practice based on the Constitution or
statutes of the United States.
It is averred that the order of the Supreme Court of the
Philippine Islands was made without the knowledge or consent of the
accused, and that the plaintiffs in error had not the opportunity
to meet the witnesses face to face, in violation of Article Six of
the Amendments of the Constitution of the United States, and § 5 of
the Act of Congress of July 1, 1902, 32 Stat. 691, c. 1369,
embodying the so-called Philippine Bill of Rights, which is
substantially taken from the Bill of Rights of the federal
Constitution. Kepner v. United States, 195 U.
. Section 5 of that act provides:
"That in all criminal prosecutions the accused shall enjoy the
right to be heard by himself and counsel, . . . to have a speedy
and public trial, to meet the witnesses face to face,"
etc. This is substantially
Page 221 U. S. 330
the provision of the Sixth Amendment of the Constitution of the
United States, which provides that the accused shall enjoy the
right to a speedy and public trial, and to be confronted with the
witnesses against him. This provision of the statute intends to
secure the accused in the right to be tried, so far as facts
provable by witnesses are concerned, by only such witnesses as meet
him face to face at the trial, who give their testimony in his
presence and give to the accused an opportunity of
cross-examination. It was intended to prevent the conviction of the
accused upon depositions or ex parte
particularly to preserve the right of the accused to test the
recollection of the witness in the exercise of the right of
cross-examination. Mattox v. United States, 156 U.
, 156 U. S. 242
Kirby v. United States, 174 U. S. 47
174 U. S. 55
Wigmore on Evidence, Vol. 2, §§ 1396, 1397.
But this general rule of law embodied in the Constitution, and
carried by statute to the Philippines, and intended to secure the
right of the accused to meet the witnesses face to face, and to
thus sift the testimony produced against him, has always had
certain well recognized exceptions. As examples are cases where the
notes of testimony of deceased witness, of which the accused has
had the right of cross-examination in a former trial, have been
admitted. Dying declarations, although not made in the presence of
the accused, are uniformly recognized as competent testimony.
Mattox v. United States, supra.
Documentary evidence to
establish collateral facts admissible under the common law, may be
admitted in evidence. Cooley, Constitutional Limitations, 2d ed.
450, note; People v. Jones,
24 Mich. 224.
In the present case, the judge, clerk of the court, and the
official reporter were not witnesses against the accused within the
meaning of this provision of the statute. They were not asked to
testify to facts concerning their guilt or innocence. They were
simply required to certify, in
Page 221 U. S. 331
accordance with a practice approved by the Supreme Court of the
Philippine Islands, as to certain facts regarding the course of
trial in the Court of First Instance. The taking of such
certification involved no inquiry into the guilt or innocence of
the accused; it was only a method which the court saw fit to adopt
to make more complete the record of the proceedings in the court
below, which it was called upon to review. Where a court, upon
suggestion of the diminution of the record, orders a clerk of the
court below to send up a more ample record or to supply
deficiencies in the record filed, there is no production of
testimony against the accused, within the meaning of this provision
as to meeting witnesses face to face, in permitting the clerk to
certify the additional matter. We think the court acted within its
authority in this respect, and did not violate the Philippine Bill
of Rights, embodied in the Act of July, 1902, in the respects
If the assignments of error can be taken to cover the objection
that the accused were not present when the court ordered the
additional record to be made, we think there is no merit in this
objection. In Hopt v. Utah, 110 U.
, this Court held that due process of law required
the accused to be present at every stage of the trial. And see
Howard v. Kentucky, 200 U. S. 164
Schwab v. Berggren, 143 U. S. 442
this Court held that due process of law did not require the accused
to be present in an appellate court, where he was represented by
counsel, and where the only function of the court is to determine
whether there is error in the record, to the prejudice of the
As we understand the procedure in the Supreme Court of the
Philippine Islands, it acts upon the record sent to it upon the
appeal, and does not take additional testimony, although it has
power to modify the sentence. In any event, the record before us
does not show that any
Page 221 U. S. 332
additional testimony was taken against the accused in the
Supreme Court of the Philippine Islands bearing upon their guilt or
innocence of the crime charged. The assignment of error is, in this
respect, that the court made the order for the corrections of its
record when the accused was absent from the court, and upon its own
motion. For the reasons we have stated, we think this was within
the power of the court, and there was no lack of due process of law
in making the order as the court did in this case.
Objections are made as to the want of proper arrest and
preliminary examination of the accused before a magistrate, and
that the information was not verified by oath or affidavit. If
tenable at all, no objections of this character appear to have been
made in due season in the Court of First Instance. Objections of
this sort must be taken before pleading the general issue by some
proper motion or plea in order to be available to the accused. 1
Bish., Crim.Proc. § 730.
As to the objection that no indictment was found by a grand
jury, as required by Article Five of the Amendments of the
Constitution, there is no such requirement in the Philippine act of
July 1, 1902. It is therein provided that "no law shall be enacted
which shall deprive any person of life, liberty, or property
without due process of law." This Court has held that due process
of law does not require presentment of an indictment found by a
grand jury. Hurtado v. California, 110 U.
The objection that the accused was not tried by a petit jury is
disposed of in Dorr v. United States, 195 U.
, in which it was held that, in the absence of
congressional legislation to that end, there was no right to demand
trial by jury in criminal cases in the Philippine Islands. It is
unnecessary to repeat the reasons for that conclusion, announced in
Page 221 U. S. 333
Other assignments of error are made; an examination satisfies us
that no violation of the Constitution or statutes of the United
States in the proceedings had in the Supreme Court of the
Philippine Islands warrants a disturbance of the judgment of that
Dissenting, MR. JUSTICE HARLAN.