G. R. No. 1303. December 12, 1903

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2 Phil. 58

[ G. R. No. 1303. December 12, 1903 ]




The defendant, John B. Colley, was a private in Company M, Twenty-sixth  Infantry,   United States  Regular Army, and  while in such service and on  or about the 29th day of March, 1002, he  killed one Frank Ignasiack, also a private in the same company, for which crime said Colley was arrested by the military authorities.

A general  court-martial  was duly appointed by  Brigadier-General  Grant, commander,  to meet at Catbalogan, Samar, May 24, 1902,  or as soon thereafter as practicable. for the trial of  such persons as  were  properly brought before it.

On June 4, 1902, the  said court met  and proceeded to the trial  of said  Colley, who  was  personally present and represented by counsel,  on the charge of murder,  in violation of the fifty-eighth article of war, in that he did, in time of  insurrection,  willfully,  unlawfully,  feloniously,  and with malice aforethought, murder said Frank Ignasiack by shooting him with a rifle, inflicting a wound of which said Iguasiack died then and there.  This at Tarangnan,  Samar, Philippine  Islands, on  or about  the  29th day of March, 1902.

The accused plead not guilty, and thereupon and thereafter many witnesses were  sworn and gave  testimony in the case, and the said court  on June 6, 1902,  after hearing all the evidence  and  after due deliberation, found  the accused guilty of the charge of murder and also guilty of the  specification.   The  court  thereupon sentenced  said accused to be “hanged  by the neck until dead,” at such time  and place as the  reviewing authority  may direct, two-thirds of the court concurring therein.  The court then adjourned subject to meet at the call of the president. On July 11, pursuant to  an order from Brigadier-General Grant,  the court-martial  reconvened for the purpose of revising the record in this case, and made several verbal changes, not, however, affecting the  jurisdiction,  the finding, or sentence of the court.

The record was then forwarded, July 23, 1902,  by  Brigadier-General  Grant to the  adjutant-general, Division of the Philippines,  Manila, P.  I.,  with this  indorsement: 

“Under the terms  of the fifty-eighth  article of  war, as construed in paragraph 91, Dig. Opin. J. A. G., 1901, any action on this  case subsequent to July 4, 1902, seems  to be illegal.  Private Colley has not been released from confinement.”

Subsequently, and on the  12th day of August, 1902, the judge-advocate forwarded the same to the adjutant-general of the division, under indorsement 7, “recommending that, as the 58th A. W.  is no longer operative since the proclamation of the President of July 4, 1902, an effort be made to have this man tried by the civil authorities for murder, and that his discharge without honor be requested from the Secretary of War under section 3, paragraph 167. A. R.”

On August 14, 1902, under  indorsement 8, by order of Major-General Chaffee, it was returned, through headquarters Department of South Philippines, Cebu,  Cebu, to the commanding officer, Catbalogan, Samar,  for action as  indicated in seventh indorsement, and was received and  its contents noted.

The proclamation of  the President of the United States issued July 4, 1902, is known as the amnesty proclamation, and recites that “the insurrection against the sovereignty of the United States (in the Philippine Archipelago) is now at an end, and peace has been established in all parts of the Archipelago,  except the country inhabited by the Moros, to which this proclamation does not apply.”

Section 1342 of the Revised Statutes of the United States prescribes the Rules and Articles of War.  Article 64 of this section provides that – 

“The officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, shall, at all times and in all places, be governed by the Articles of War, and shall be subject to be tried by courts-martial.”

Article 58 of said section provides that – 

“In  time of war,  insurrection,  or rebellion  *   *   * murder  *  *  *  shall be punishable by  sentence  of  a general court-martial when committed by persons  in the military  service of the United States; and the punishment in any such case  shall not be less  than the  punishment provided  for the  like  offense by the  law of the  State, Territory,  or  District  in  which such  offense may  have been committed.”

The  accused was tried and  convicted under this article 58, the crime charged having been committed by the soldier in time  of insurrection,  and it appears that when  the President proclaimed the insurrection at an end July 4, 1002, the reviewing authority  of the Army concluded  that the military authorities were without power to carry  into execution the sentence of the court.

Article 105 of said section provides that – 

“No sentence  of a court-martial inflicting  the punishment of death shall be carried into execution until it shall have been  confirmed by the President except in the cases of persons convicted, in  time of war, as spies  *   *  *   or murderers  *  *  *; and in such excepted cases the sentence of death may be carried into execution upon confirmation by the commanding  general in the field  or the commander of the department,  as the case may be.”

It appears that after  the insurrection ended, the reviewing authority not having approved or disapproved  the sentence,  and having reached  the conclusion that under the military law no further steps could be taken by such authority toward enforcing the judgment and sentence of the court, nothing further was done by the military authorities except to dismiss  the defendant dishonorably from the Army.

Notwithstanding the  fact,  however, that the one hundred and  second article of war provides that “no person shall be tried a  second time for the  same offense,”  the defendant was turned  over to the civil authorities, and on the 8th day of January, 1903, the  provincial  fiscal of Samar filed an information in the Court of First Instance of  that province duly  charging the defendant with  the murder of said  Ignasiack, at the time and place and in the manner and with the intent mentioned in the complaint made to the court-martial.

On January 8,1903, the accused appeared in person and filed a motion that he be discharged from the accusation ‘on the  ground of former jeopardy,  setting forth in this written plea the charges and  specifications upon which he was tried by the court-martial, and also the judgment of that tribunal.

On March 28, 1903,  the prosecuting  attorney filed a paper in which he admitted the facts set up by the defense as the proceedings had  before the court-martial, and also the identity of the accused as  the same person so tried, and that it referred to the same act, the killing of Frank Ignasiack, as that  prosecuted  in the  present  cause, but denied that the charge  in each one of the said qauses is legally the same or that the said court-martial  was a court of competent jurisdiction to try the said case, adding that by  reason of the proclamation of July 4, 1902, the said court-martial has declined to continue the said cause or to execute the judgment entered therein.
  On the 31st of March, 1902, the case was heard on the plea of jeopardy before Hon. William H. Pope, judge of the Twelfth Judicial District of the Philippine  Islands, and in support of the plea of jeopardy the defendant, by his attorney, introduced in evidence  the transcript of the proceedings before the  court-martial, which was admitted by the court without objection on the part of the prosecuting attorney.

On April 2, 1903,  Judge Pope,  of the Court of First Instance, entered his decision, finding  that the defendant had been placed in jeopardy for the same  offense before a court  of competent jurisdiction, and directing  his  discharge.   Against  this  order the prosecuting  attorney appealed.

For the purposes of this appeal the facts are not denied or questioned: (1)  That the general court-martial which tried  Colley was lawfully organized, (2) that the crime charged  was one forbidden by law,  (3) that in  time of insurrection a general court-martial has jurisdiction of the crime charged, (4) that insurrection existed at the time of the commission of the offense and until after the conviction and sentence of the accused, (5)  that a trial of  the accused took place before that court  upon the charge and the defendant’s plea of “not guilty,” and (6) that upon the evidence in the case that court found the defendant, Colley, guilty of murder and sentenced him to be hanged by the neck until dead.

It has  frequently been held that, although courts-martial are the creatures of military orders and are transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, are as legal and valid as those of any other tribunals, and that their proceedings and judgments can not be reviewed or set aside by the civil courts.   (Swain vs. United States, 165  U. S., 553; United States vs. Hirsch,  100 U. S., 33; Johnson vs. Sayre, 158 U. S., 109; United States vs. Ball,  163 U. S., 662; Wales vs. White, 114 U. S., 564.) 

“The judgments of courts-martial  are conclusive, like those  of any other courts, unless  some defect in regard to their jurisdiction is shown.”   (Brown vs. Wadsworth et al., 15 Vt, 170.)

Under the practice in force under military  law,  the defendant could not be tried again by court-martial.

Where the accused has been once duly acquitted or convicted, he has been “tried” in the sense of the one hundred and second  article of war and can  not be  tried again against  his will, though no action whatever be taken by the reviewing authority, or though the finding and sentence be wholly disapproved by such authority. 

“It is immaterial whether the former conviction or acquittal  is approved or disapproved.”  (Davis’s  Military Law, 533, 2d ed.)

The accused now claims that, inasmuch as he was put in jeopardy by his trial, conviction, and sentence by the court-martial, he can not, for the same offense, be put in jeopardy again.

By Article V of the amendments to the Constitution of the United States it is provided: 

“*  *   *   nor shall any person be  subject for the same offense to be twice put in jeopardy of life or limb.”

This article was made applicable to the Philippine Islands by section 5 of the act of Congress passed July 1, 1902, relating to these Islands, viz: 

“Sec. 5. *   *   *  No person shall be held to answer for a  criminal offense without due process of law; and no person for the same offense shall be twice put  in jeopardy of punishment.”

What  is meant by “jeopardy?”  Bishop in his work on Criminal Law (vol. 1, sec. 979,  8th ed.)  says: “One who in a judicial tribunal has been convicted,  acquitted, or put in what  the  law  terms jeopardy in respect to a real or supposed crime can not be further or again pursued for it  except as by some step in proceeding he waived his right to rely on this immunity.”

Judge  Story in his work on the Constitution (5th  ed., sec. 1787) says that “the meaning  of it is, that  a  party shall  not be tried a second time  for the same offense after ho. has once been convicted or acquitted of the offense charged in the verdict of the jury and judgment has passed thereon for or against him.”   Some authorities hold that jeopardy may take place in  the proceeding of  the trial before it ends; others that there is no jeopardy  until the rendition of the  verdict or judgment; but all agree that jeopardy exists when  the trial resulted in  a judgment of conviction or acquittal, especially if sentence follows the conviction, as in the case at bar.  The doctrine that no one shall be  twice put in jeopardy for the same offense is favored by the courts.  It is fundamental.  It is founded on reason and justice.  It was a part of the civil law and of  the common law, and is incorporated not only in the Constitution of the United States but also in the constitutions of almost all  of the States.

The defendant was  duly convicted in a military court, having  authority and  jurisdiction to try the case, and he was convicted and sentenced. 

“If the tribunal has authority either concurrently with another or exclusive whether it is an inferior one, as a justice’s court, a court-martial, or the court of a municipalcorporation, or is a superior one  a conviction or acquittal in it will be a bar to a subsequent proceeding in whatever court undertaken.”  (1 Bishop’s Cr. Law, sec. 1029; Commonwealth vs. Roby, 12 Pick.  Mass., 496.) 

“The acquittal of the accused by a  court-martial  is a bar to subsequent indictments in courts of common law for the same  offense,  the tribunal acquitting being competent to acquit.”   (Wilkes vs. Dinsman, 7 How.  U. S., 123.)

There are,  however,  numerous decisions of Federal and State courts  holding that by the same act  a person may commit two  crimes, may  offend at the same time  two sovereignties  that of  the  United States and that  of  the State in which the  offense is committed.  From this doctrine the conclusion was reached that therefore there could be two trials of the accused for the  same act, one  in  the courts of the United  States and the  other in the State tribunal, and also, as a consequence, two punishments.

This doctrine has been applied in such offenses as passing counterfeit money, harboring fugitives, illegal sale of liquor, etc.   (State  vs. Rankin, 4 Coldwell, Tenn., 145; Fox vs. Ohio, ,5 How. U. S., 410; Baron vs. Mayor of Baltimore, 7 Peters U. S., 243; Moore vs. People of Illinois, 14 How. U.  8., 13.)

Conceding this to be an exception  to  the general rule that  an offender shall  not be tried  twice for the same offense against his will, it is not applicable in this Colley case  for the reason that there is no  dual sovereignty in these Islands; there is only one to be offended  the United States  for which and in the name of which the Commissioners of the Philippine Islands as well as courts-martial act.

At the time of the shooting in question the Commission enacted laws “by authority of the President of the United States.”

So here there is but one offense, that against the United States, and when that Government chooses the tribunal in which to try an offender, when the trial takes place in that tribunal, and when the accused is convicted and sentenced, he can not again be put in jeopardy in another court of the same sovereignty.

It follows that the defendant having been once in jeopardy can not be tried again for the offense of which he was formerly convicted.

The Supreme Court of  the  United  States has gone a step further, and has held that in time of war, insurrection, or  rebellion an  officer or  soldier  of  the United States Army can not be tried at all in a civil court for an offense committed in  the State, Territory, or  District where  the war,  insurrection, or rebellion exists.   It held that such an  offense comes within the provisions of the  fifty-eighth article of war and that general courts-martial have  exclusive jurisdiction in such cases.

The case  of Coleman vs.  Tennessee  (97 U.  S., 509)  is authority  for this view of the law and it applies to the case at bar.  In that case it appeared that Coleman was indicted in a criminal court of Tennessee,  October 2,  1874, on a charge  of murder, which it was alleged the defendant committed March 7,1865, while he was in the United States Army.  To  this indictment the defendant pleaded a former conviction, for the same offense, by a general court-martial  regularly  convened  for his trial, at Knoxville, Tenn., March  27,  1865;  the  United States at that time and when the offense was committed occupying with their armies east Tennessee as a military district, and the defendant  being  a regular soldier of their military service; and that he was  convicted by said court-martial  of the crime of murder and sentenced to death for the killing of the  same person mentioned in the indictment, and that such sentence  was still standing as the judgment of the court-martial.  It seems that, as in this Colley case, nothing was  done to carry out the  sentence of the court-martial owing to peace being declared soon after the conviction. The Tennessee courts, however, held the indictment good and the  plea of jeopardy  bad, inasmuch as  there was also a violation of the State laws; and the defendant was tried, convicted, and  sentenced to be executed.

Through a habeas corpus proceeding the case was  taken to the Supreme Court of the United  States:  Objection was made that a plea of a former conviction for the same offense was not a proper one,  for it admitted the jurisdiction of the criminal court to try the offense if it were not for the former  conviction, but it was said that its inapplicability would  not prevent the court from giving effect to the objection which the defendant attempted to raise, that the State court had no jurisdiction to try and punish him for the offense. The court discussed at great length the right to govern the territory of an enemy during military  occupation, the character, form, and powers of the  local civil government to be established, the relations of the military authorities to the people, the civil courts established, and their jurisdiction in civil and criminal cases.

“But this doctrine,” said Mr. Justice Field,  who wrote the prevailing opinion, “does not affect the exclusive character of the jurisdiction of the military  tribunals over the officers and soldiers  of the Army of the  United States during war, for they are not subject to the laws nor amenable to the tribunals of the hostile country.”  And so the court held that: “The  judgment and conviction in this criminal court should have been set aside and the indictment quashed for want of jurisdiction.  Their effect was to Oof out an act  done under the authority of the United States by a tribunal of officers appointed  under the law enacted for the government and regulations of the Army in time of war, and while that Army was  in a hostile or conquered State.  The  judgment  of  that  tribunal when rendered was beyond the control of the State of Tennessee. The authority of the United States was then sovereign and their jurisdiction  exclusive.”  Coleman  was, therefore, discharged  from arrest.  The  same  principles are  laid down in the case of Dow vs. Johnson (100 U. S., 158).

The facts in this Colley case are similar  to those in the case of  Ooleman  in almost every respect, and, therefore, the holding of the Supreme Court that, upon such a state of facts, the court-martial had exclusive jurisdiction, established a precedent which this court should follow.

Consequently, for the reason that the defendant  was once in  jeopardy, and also because the court-martial had exclusive jurisdiction to try the accused, the  judgment of the Court of  First Instance discharging  the defendant from arrest is affirmed.

Cooper and Johnson, JJ., concur.



I  am  of  the opinion that  the  military trial is  still pending.  The case lmd been decided by a competent court, and on July 1, 1002, the  only thing lacking was the approval of the  President of the United States or the commanding general  of the division, this approval being an indispensable  requisite for the execution of a sentence of the military commission.  Upon this view of the case, and notwithstanding the information filed  by  the provincial fiscal of  Samar accusing John B.  Colley of the crime of murder, it is unquestionable that the judge of that district was without jurisdiction to take cognizance  of the prosecution, and, consequently, all the proceedings of the judge of the. First Instance are null and void.   There is no legal reason why  there should be a new  prosecution of a crime which has already been the object of a former proceeding, in  which a final decision was rendered  and which only lacks the final formality of the approval  of the President or of the commanding general of the division.

The amnesty proclamation of July 4, 1902, can not be regarded as producing the effect of a dismissal of the military” proceedings  or as a ground for beginning a new criminal prosecution  against the defendant for the  same crime.  The law does not authorize such a procedure, nor is  authority  therefor  contained in  the  proclamation. Furthermore, no such decision appears to have been made by the court before which the case was tried.

I am therefore of the  opinion that the case prosecuted against John  B. Colley should be declared null and  void, with  the costs de oficio,  and that the  judge should immediately discharge the  accused and place his person at the disposal of the commanding general of the division.



I concur in the judgment on the ground that the case falls either within section 28 or within section 26 of  General Orders, No. 58.   Section 28 is as follows:

“A person can  not  be tried for an offense, nor for any attempt  to  commit the same or  frustration thereof, for which he has  been previously brought to  trial in a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to  sustain a  conviction,  after  issue properly joined, when the case is dismissed or otherwise terminated before judgment without the consent of the accused.”

The court-martial was a court competent to try the case when the defendant was  brought before  it and when it pronounced  its judgment.  If this did  not end the  case the subsequent action of the military authorities amounted to an abandonment of the proceedings.  This was a termination of the case without the consent of the defendant.

If  it  be  said  that the  action  of the  court-martial amounted to a final judgment without the approbation of the convening authority, and so ended the  case, then there was a former conviction, and, under section 26 of General Orders, No.  58, this proceeding could not be maintained.

I do  not think that the case of Coleman vs. Tennessee, so far as it holds the jurisdiction of  the court-martial to be exclusive, is applicable here.   The relation  which  the Province of Samar held to the Government of the United States when the crime was committed and the trial before the court-martial had was not the same as that between said Government and the State of  Tennessee  during  the civil war.

Date created: April 16, 2014


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