Page images
PDF
EPUB
[blocks in formation]

tially the provision of the Sixth Amendment to 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 affidavits, and 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. S. 237, 242; Kirby v. United States, 174 U. S. 47, 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 witnesses, 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, 156 U. S. 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 Michigan, 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

[ocr errors]
[blocks in formation]

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 suggested.

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. S. 574, 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. In 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 accused.

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

[blocks in formation]

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. Pro., § 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, § 5, c. 1369. 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. S. 516.

The objection that the accused was not tried by a petit jury is disposed of in Dorr v. United States, 195 U. S. 138, 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 the Dorr Case.

[blocks in formation]

Other assignments of error are made, an examination of which 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 court.

Dissenting, MR. JUSTICE HARLAN.

Affirmed.

MERILLAT v. HENSEY.

APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 107. Argued March 17, 1911.—Decided May 15, 1911.

Both courts below having found that no actual fraud was intended in this case, this court considered only the question of constructive fraud.

Where, as in the District of Columbia, the assignment of a chose in action does not have to be recorded and there is no way in which constructive notice can be given, the assignment, if valid upon its face, is ineffective only in case of actual bad faith established by the facts.

Knowledge of one's own insolvency, except in cases provided by stat

ute, does not render it illegal or criminal to prefer one creditor above another. Huntley v. Kingman, 152 U. S. 527.

The fact that the amount alleged to be due on an unliquidated chose in action is greater than the amount of the debt in payment of which it is assigned is not necessarily evidence of fraud against other creditors; and where the amount actually recovered is less than the amount of the debt this court will not disturb the finding of both courts below that there was no fraud.

Reservation to the assignor of surplus of a chose in action given in payment of a debt does not of itself constitute fraud in law. To be fraud in law the reservation must be of some pecuniary benefit to the as

Argument for Appellants.

221 U.S.

signor at the expense of creditors and a prime purpose of the conveyance. Section 1120, Code of the District of Columbia. The assignment of a mere chose in action, not subject to legal process and of uncertain value, given to secure an honest debt, will not be set aside by this court as fraudulent in law because the surplus,. if any (there actually being a deficit), was reserved to the assignors by a separate instrument, for the recording of which there was no provision, after two courts have held that the assignment was not made with intent to hinder and defraud creditors and as matter of law had no such result.

34 App. D. C. 398, affirmed.

THE facts are stated in the opinion.

Mr. Chas. H. Merillat and Mr. Mason N. Richardson for appellants:

While the Federal rule and those of many States permit a debtor honestly to prefer a special creditor, aside from the effect of recent statutory enactments, the Federal rule is equally well settled that a secret reservation of a benefit to a known failing debtor is fraudulent per se and vitiates the preference. Lukins v. Aird, 6 Wall. 79; Means v. Dowd, 128 U. S. 282; Dent v. Ferguson, 132 U. S. 67; Huntley v. Kingman, 152 U. S. 527; Crawford v. Neal, 144 U. S. 585; Bamberger v. Schoolfield, 160 U. S. 150; In re Robertshaw Mfg. Co., 133 Fed. Rep. 556.

It is the secrecy of the trust which constitutes its illegality. Greenleve v. Blum, 59 Texas, 126; Rice v. Cunningham, 116 Massachusetts, 469; Campbell v. Davis, 85 Alabama, 56; Dean v. Skinner, 42 Iowa, 418; Connelly v. Walker, 45 Pa. St. 454; Neubert v. Maesman, 37 Florida, 97; Moore v. Wood, 100 Illinois, 451; Beidler v. Crane, 135 Illinois, 98; Jones v. Gott, 10 Indiana, 242; Clark v. French, 23 Maine, 228; Sidensparker v. Doe, 52 Maine, 481, 490; Malcolm v. Hodges, 8 Maryland, 418; Whedbee v. Stewart, 40 Maryland, 420; Franklin v. Claflin, 49 Maryland, 24; Smith v. Conkwright, 28 Minnesota, 23; Molaska Co. v. Steele, 36 Mo. App. 496; Wooten v. Clark, 23 Mississippi,

« PreviousContinue »