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DIAZ V. UNITED STATES, 223 U. S. 442 (1912)

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U.S. Supreme Court

Diaz v. United States, 223 U.S. 442 (1912)

Diaz v. United States

No. 384

Argued November 16, 1911

Decided February 19, 1912

223 U.S. 442


The provision against double jeopardy in the Philippine Act of July 1, 1902, 3 Stat. 691, c. 1369, § 5, is in terms restricted to instance where the second jeopardy is for the same offense as was the first. Gavieres v. United States, 220 U. S. 338.

A charge of homicide made after death of the person assaulted is not the same as a charge of the assault before the death of that person. One cannot be put in jeopardy for the offense of homicide prior to the death of the person upon whom the crime is committed.

Jeopardy cannot extend to an offense beyond the jurisdiction of the court in which the accused is tried. chanroblesvirtualawlibrary

Page 223 U. S. 443

One convicted in the Philippine Islands of assault before the death of the injured person is not put in second jeopardy, within the meaning of § 5 of the Philippine Act of 1902, by being placed on trial for homicide after the death of the person assaulted as a consequence of the assault.

The right of confrontation with witnesses secured by § 5 of the Philippine Act of July 1, 1902, is in the nature of a privilege extended to, rather than a restriction placed upon, the accused, and can be waived or asserted as he sees fit.

The admission by consent of the accused, without qualification or restriction, of testimony taken elsewhere, is not a denial of the right of confrontation with witnesses secured by § 5 of the Philippine Act of July 1, 1902, and when so admitted, the testimony is equally available to the government and to the accused.

When evidence taken elsewhere is admitted generally and without restriction by consent of the accused, it is not subject to the objection that it is hearsay.

The right to be heard by himself and counsel secured to the accused in all criminal prosecutions by § 5 of the Philippine Act of July 1, 1902, is the substantial equivalent of the similar right embodied in the Sixth Amendment, by which it should be measured. Kepner v. United States, 195 U. S. 100.

One not in custody cannot avail of the right to be heard so as to defeat the right of the government to try him by absenting himself voluntarily and claiming that, under the right to be present provisions of the Sixth Amendment, the trial cannot proceed.

While the rule may be otherwise in cases that are capital, or where the accused is in custody under the control of the court, or where special statutory provisions apply, where the offense is not capital, and the accused is not in custody, his voluntary absence does not nullify what has been done in, or prevent the completion of, his trial, but operates as a waiver of his right to be present and leaves the court free to proceed, and so held that the continuation of the trial during the voluntary absence of the accused in this case while it proceeded with his counsel present did not violate the provisions of § 5 of the Philippine Act of July 1, 1902, giving him a right to be present and heard.

Although concurrent finding of fact by both the Court of First Instance and the Supreme Court of the Philippine Islands are entitled to great respect, this Court may independently examine the evidence, and in this case, after so doing, it affirms the judgment.

15 Phil. 123 affirmed. chanroblesvirtualawlibrary

Page 223 U. S. 444

On May 30, 1906 at San Carlos, province of Occidental Negros, Philippine Islands, Gabriel Diaz, by blows and kicks, inflicted bodily injuries upon Cornelio Alcanzaren, and by reason thereof was the next day charged before the justice of the peace of San Carlos with assault and battery. At the hearing upon that charge, Diaz was found guilty of a misdemeanor and fined fifty pesetas and costs, which he paid. Subsequently, on the twenty-sixth of June, Alcanzaren died, and Diaz was then charged before the same justice of the peace with homicide, it being alleged that the death ensued from the bodily injuries. At the preliminary investigation of this charge, the justice concluded that there was reasonable cause to believe that it was well founded, and accordingly held the accused to await the action of the Court of First Instance. There was then filed in that court a complaint charging Diaz with the crime of homicide, not capital, upon which he subsequently was tried, found guilty, and sentenced to a term of imprisonment and other penalties.

When called upon to plead in the Court of First Instance, Diaz interposed a plea of former jeopardy, supported by a copy of the record of the proceedings before the justice of the peace upon the charge of assault and battery and at the preliminary investigation, but the plea was overruled. Then, during the trial, his counsel introduced in evidence the record of those proceedings. In doing this, the counsel spoke only of "the proceedings in the case for a misdemeanor," but it otherwise appears that what was meant was the record of both proceedings. Both were embraced in a single document, authenticated by a single certificate, and it clearly is disclosed that counsel on both sides and the court treated the entire document as in evidence. It embraced the testimony produced before the justice at the hearing upon the assault and battery charge and at the preliminary investigation, including the personal statement of the accused and the report of an autopsy chanroblesvirtualawlibrary

Page 223 U. S. 445

upon the body of the deceased performed conformably to the Philippine law, and it was partly upon this testimony that the Court of First Instance rested its judgment of conviction.

On two occasions, covering the examination and cross-examination of two witnesses for the government, Diaz, who was at large on bail, voluntarily absented himself from the trial, but consented that it should proceed in his absence, but in the presence of his counsel, which it did.

Following his conviction, Diaz prosecuted an appeal to the Supreme Court of the Philippines, where, subject to a change made in the term of imprisonment (see Trono v. United States, 199 U. S. 521; Flemister v. United States, 207 U. S. 372), the conviction was sustained (15 Phil 123) and the case was then brought here. chanroblesvirtualawlibrary

Page 223 U. S. 448

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