Thomas E. Kepner, a practising lawyer in the city of Manila, Philippine Islands, was sharged with a violation of the law in the embezzlement of the funds of his client (estafa.) Upon trial, in November, 1901, in the court of first instance, without a jury, he was acquitted, it being the judgment of the court that he was not guilty of the offense charged. Upon appellate proceedings by the United States to the supreme court of the Philippine Islands, the judgment of the court of first instance, finding the accused not guilty, was reversed, and Kepner was found guilty, and sentenced to a term of imprisonment of one year, eight months, and twenty-one days, suspended from any public office or place of trust, and deprived of the right of suffrage.
Error was assigned in the appellate court upon the ground that the accused had been put in jeopardy a second time by the appellate proceedings, in violation of the law against putting a person twice in jeopardy for the same offense, and contrary to the Constitution of the United States.
The appeal was taken by the United States on December 20, 1901. A motion to dismiss the appeal was made on January 1, 1902. The motion was finally overruled on October 11, 1902; the final decision in the case, finding the accused guilty, and imposing the sentence, was rendered on December 3, 1902.
A proper consideration of the question herein made renders it necessary to notice some of the steps by which the jurisdiction of the courts in which the accused was tried was established.
The United States acquired the Philippine Islands by cession under the treaty of peace executed at Paris, between the United States and Spain, on December 10, 1898, the final ratifications being exchanged April 11, 1899 [30 Stat. at L. 1754].
The islands, after American occupation, had been under military rule prior to the creation of the Philippine Commission.
Under the control of the military government, orders had been issued, among others, military order number 58, dated April 23, 1900, which order was in part as follows;
'General Orders, No. 58.
Manila, P. I., April 23, 1900.
'In the interests of justice, and to safeguard the civil liberties of the inhabitants of these islands, the Criminal Code of Procedure now in force therein is hereby amended in certain of its important provisions as indicated in the following enumerated sections:
* * * * * 'Sec. 3. All public offenses triable in courts of first instance or in courts of similar jurisdiction, now established or that hereafter may be established, must be prosecuted by complaint or information.
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'Rights of accused at the trial.
'Sec. 15. In all criminal prosecutions the defendant shall be entitled:
'1. To appear and defend in person and by counsel at every stage of the proceedings.
'2. To be informed of the nature and cause of the accusation.
3. To testify as a witness in his own behalf; but if a defendant offers himself as a witness, he may be cross-examined as any other witness. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him.
'4. To be exempt from testifying against himself.
'5. To be confronted at the trial by and to cross-examine the witnesses against him. Where the testimony of a witness for the prosecution has previously been taken down by question and answers in the presence of the accused or his counsel, the defense having had an opportunity to cross-examine the witness, the deposition of the latter may be read, upon satisfactory proof to the court that he is dead or insane, or cannot with due diligence be found in the islands.
6. To have compulsory process issue for obtaining witnesses in his own favor.
'7. To have a speedy and public trial.
'8. To have the right of appeal in all cases.
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'Sec. 43. From all final judgments of the courts of first instance or courts of similar jurisdiction, and in all cases in which the law now provides for appeals from said courts, an appeal may be taken to the supreme court, as hereinafter prescribed. . . .
'Sec. 44. Either party may appeal from a final judgment, or from an order made after judgment, affecting the substantial rights of the appellant, or in any cases now permitted by law. The United States may also appeal from a judgment for the defendant, rendered on a demurrer to an information or complaint, and from an order dismissing a complaint or information.