The plaintiffs in error seek a reversal of the judgment in their case on the ground that the supreme court of the Philippine Islands had no power to reverse the judgment of the court of first instance, and then find them guilty of a higher crime than that of which they had been convicted in that court, and of which higher crime that court had acquitted them, and they contend that such a conviction by the supreme court of the islands was a violation of the act of Congress, passed July 1, 1902 (32 Stat. at L. 691, chap. 1369), a portion of the 5th section of that act providing that 'no person for the same offense shall be twice put in jeopardy of punishment.'
This language is to be found in connection with other language in the same act, providing for the rights of a person accused of crime in the Philippine Islands. The whole language is substantially taken from the Bill of Rights set forth in the amendments to the Constitution of the United States, omitting the provisions in regard to the right of trial by jury and the right of the people to bear arms, and containing the prohibition of the 13th Amendment, and also prohibiting the passage of bills of attainder and ex post facto laws.
The important question to be determined is whether this action of the supreme court of the islands did violate the act of Congress by placing the accused twice in jeopardy.
The meaning of the phrase, as used in the above-mentioned act of Congress, was before this court in Kepner v. United States, decided in May, 1904 (195 U.S. 100, 49 L. ed. 114, 24 Sup.Ct.Rep. 797), where will be found a very full discussion of the subject. The plaintiff in error in that case had been acquitted of the crime charged against him in the court to first instance, but the government, not being satisfied with the decision, appealed to the supreme court, and that court reversed the judgment of acquittal, and found Kepner guilty of the crime of which the court of first instance had acquitted him, and sentenced him to a term of imprisonment, and suspended him from any public office or public trust, and deprived him of the right of suffrage. This court, upon writ of error, held that, in reversing, upon the appeal of the government, the judgment of the court of first instance, and itself convicting the accused and pronouncing judgment against him, the supreme court of the islands violated the provision in question, and its judgment was therefore reversed and the prisoner discharged. It was also held that the government had no power to obtain a review of a judgment or decision of the trial court acquitting an accused party, and that the phrase in question was to be construed as the same phrase would be construed in the instrument from which it was originally taken, viz., the Constitution of the United States; and that the settled and wellknown meaning of the language, as used in the Constitution, must also be taken when the same language is used in the act of Congress, and not as it might possibly be construed with reference to Spanish law or Spanish procedure.
The difference between that case and the one now before the court is obvious. Here the accused, while acquitted of the greater offense charged in the complaint, were convicted of a lesser offense included in the main charge. They appealed from the judgment of the court of first instance, and the government had no voice in the matter of the sppeal, it simply followed them to the court to which they appealed. We regard that fact as material and controlling. The difference is vital between an attempt by the government to review the verdict or decision of acquittal in the court of first instance and the action of the accused person in himself appealing from the judgment and asking for its reversal, even though that judgment, while convicting him of the lower offense, acquits him of the higher one charged in the complaint.
We may regard the question as thus presented as the same as if it arose in one of the Federal courts in this country, where, upon an indictment for a greater offense, the jury had found the accused not guilty of that offense, but guilty of a lower one which was included in it, and, upon an appeal from that judgment by the accused, a new trial had been granted by the appellate court, and the question was whether, upon the new trial accorded, the accused could be again tried for the greater offense set forth in the indictment, or must the trial be confined to that offense of which the accused had previously been convicted, and which conviction had, upon his own motion, been set aside and reversed by the higher court.