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tiff in error had been declared to be a citi-ington, and that state had disclaimed juzen of the United States, and entitled to the rights, privileges, and immunities of such citizenship, and entitled to the benefit of the laws, civil and criminal, of the state of Nebraska, in which the Indian allotment was situated, and upon which the offense is alleged to have been committed.

risdiction over Indian lands, which were to remain under the absolute jurisdiction and control of the Congress of the United States, and it was held that while this fact did not deprive the state of the right of punishing crimes committed on such reservation by other than Indians or against Indians. (Draper v. United States, 164 U. S. 240, 41 L. ed. 419, 17 Sup. Ct. Rep. 107), that where jurisdiction and control over Indian lands remained in the United States, Congress had the right to forbid the* introduction of liquor into such territory, and to provide for the punishment of those found guilty thereof. Couture v. United States, 207 U. S. 581, 52 L. ed. 350, 28 Sup. Ct. Rep. 259, was cited, where a conviction for introducing liquor into the Indian country was affrmed.

The act under which the conviction was had was passed January 30, 1897 (29 Stat. at L. 506, chap. 109), and provides in part: "That any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever, into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the con- In the case at bar, the United States had sent of the United States, shall be pun- not parted with the title to the lands, but ished by imprisonment for not less than still held them in trust for the Indians. sixty days, and by a fine of not less than | In that situation its power to make rules one hundred dollars for the first offense, and and regulations respecting such territory not less than two hundred dollars for each offense thereafter."

Obviously this act in terms embraced the acts stated in the agreed statement of facts, which we have set forth above. The liquor was introduced into the Indian country and into an Indian allotment, while the title to the same was still held in trust by the government.

The contention of the plaintiff in error is that the act cannot be applied to him because, at the time charged, he had become a citizen, and not subject to such regulation as a ward of the government; and furthermore, that the territory in question had become subject to the jurisdiction of the state of Nebraska, to whose police regulations upon the subject of the liquor traffic he was alone amenable.

was ample. Van Brocklin v. Anderson (Van Brocklin v. Tennessee) 117 U. S. 151, 167, 29 L. ed. 845, 850, 6 Sup. Ct. Rep. 670; Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536; Light v. United States, 220 U S. 523, 55 L. ed. —, 31 Sup. Ct. Rep. 485

It is a result of the recent cases decided in this court (Couture v. United States, 207 U. S. 581, 52 L. ed. 350, 28 Sup. Ct. Rep 259; United States v. Celestine, 215 U. S. 278, 54 L. ed. 195, 30 Sup. Ct. Rep. 93; United States v. Sutton, 215 U. S. 291, 54 L. ed. 200, 30 Sup. Ct. Rep. 116, and Tiger v. Western Realty Co., 221 U. S. 286, 55 L. ed. 31 Sup. Ct. Rep. 578) that the mere fact that citizenship has been conferred upon Indians does not necessarily end the right or duty of the United States to pass laws in their interest as a dependent people. A discussion of the matter in those cases renders further comment unnecessary now.

Fur

When this case was certified here, Re Heff, 197 U. S. 488, 49 L. ed. 848, 25 Sup. Ct. Rep. 506, had been decided, but the sub-thermore, in the present case liquor was insequent cases of the United States v. Celes- troduced into an allotment the title to tine, 215 U. S. 278, 54 L. ed. 195, 30 Sup. Ct. which was still held by the United States, Rep. 93, and United States v. Sutton, 215 and concerning which it had the power to U. S. 291, 54 L. ed. 200, 30 Sup. Ct. Rep. make rules and regulations under the au116, were yet undetermined. We had oc- thority of the Constitution of the United casion to consider these cases in Tiger v. States. While for many purposes the juWestern Invest. Co., 221 U. S. 286, 55 L. ed. risdiction of the state of Nebraska had at-, 31 Sup. Ct. Rep. 578, and need not here tached, and the Indian as a citizen was enrepeat what was there said concerning them. titled to the rights, privileges, and immuIn United States v. Sutton, supra, it was nities of citizenship, still the United States, held that a conviction could be had under within its own territory and in the interest the act of January 30th, 1897 (29 Stat. at of the Indians, had jurisdiction to pass L. supra), for the offense of introducing li- laws protecting such Indians from the evil quor into an Indian reservation. It is true results of intoxicating liquors, as was done that in the Sutton Case the reservation in the act of January 30, 1897, which made was within the limits of the state of Wash-it an offense to introduce intoxicating li

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quors into such Indian country, including | famous crimes must be presented by inan Indian allotment. In this view, the dictment, has no application to the Philipquestion certified will be answered in the pine Islands. affirmative, and it is so ordered.

(221 U. S. 325.)

LOUIS A. DOWDELL, JR., and Wilson W.
Harn, Plffs. in Err.,

V.

UNITED STATES.

CRIMINAL LAW (§ 1110*)-APPEAL.

[Ed. Note.-For other cases, see Indictment and Information, Dec. Dig. § 3.*]

CONSTITUTIONAL LAW (§ 265*)-DUE PRO-
CESS OF LAW CRIMINAL PROSECUTION
WITHOUT INDICTMENT.

6. Due process of law does not require that a criminal charge be presented by an indictment found by a grand jury.

[Ed. Note.-For other cases, see Constitutional
Law, Cent. Dig. § 755; Dec. Dig. § 265.*]
JURY (8 21*) — RIGHT TO, IN PHILIPPINE
ISLANDS.

7. In the absence of congressional leg'slation to that end, there is no right to demand trial by jury in criminal cases in the Philippine Islands.

Dig. § 21.1
[Ed, Note.-For other cases, see Jury, Dec.

[No. 131.]

1. Certificates of the judge and the clerk of the court below, returned to the supreme court of the Philippine Islands in a proceeding to supply deficiencies in the record in a criminal cause, could be accepted by that court, so far as any questions under the Federal Constitution and statutes are Argued April 20, 1911. concerned, although they were not under oath, and although the court's seal was not attached to the clerk's certificate.

[Ed. Note. For other cases, see Criminal Law,

Dec. Dig. § 1110.*]

CRIMINAL LAW (§ 662*)
WITNESSES.

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2. The right of the accused, under the Philippine Islands Bill of Rights of July 1, 1902 32 Stat. at L. 691, chap. 1369), § 10, to meet the witnesses face to face, was not infringed by the action of the supreme court of the Philippine Islands, upon suggestion of diminution of the record, in ordering the judge and clerk of the court below to supply the failure of the record to show whether the accused pleaded to the complaint, and were present in court during the entire trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1538-1548; Dec. Dig. § 662.*] CONSTITUTIONAL LAW (§ 271*)-DUE PROCESS OF LAW-PRESENCE OF ACCUSED AT TRIAL-PERFECTING RECORD.

3. Due process of law was not denied by the action of the supreme court of the Philippine Islands in making an order upon its own motion when the accused were absent from the court, requiring the judge and clerk of the court below to supply

deficiencies in the record.

[Ed. Note. For other cases, see Constitutional
Law, Dec. Dig. § 271.*]
CRIMINAL LAW (§ 279*)-PRELIMINARY OB-
JECTIONS WAIVER BY PLEA.

4. Objections to the want of proper arrest and preliminary examination of the accused before a magistrate. and to the lack of verification of the information by oath or affidavit, must be taken before pleading the general issue by some proper motion or plea in order to be available to the accused.

[Ed. Note. For other cases, see Criminal Law,

Dec. Dig. § 279.*]

INDICTMENT AND INFORMATION (§ 3*)
NECESSITY IN PHILIPPINE ISLANDS.
5. The requirement of the 5th Amend-
ment to the Federal Constitution, that in-

1911.

Decided May 15,

Philippine Islands to review a judg
IN ERROR to the Supreme Court of the

ment which affirmed a conviction in the
Court of First Instance for the Province of
Samar, of misappropriation of public funds.
Affirmed.

See same case below, 11 Philippine, 4.
The facts are stated in the opinion.
Messrs. Charles F. Consaul, Charles C.
Heltman, and Frank B. Ingersoll for plain-

tiffs in error.

Assistant Attorney General Fowler for defendant in error.

*Mr. Justice Day delivered the opinion of of the court:

This is a writ of error to the supreme court of the Philippine Islands to review a proceeding in which the plaintiff's in error, Louis A. Dowdell and Wilson W. Harn, together with one Charles H. MacIlvaine, were convicted in the court of first instance of the Philippine Islands upon an amended complaint which charged that the three persons named, as inspectors and lieutenants of the Philippine constabulary, in the province of Samar, Philippine Islands, conspired together to abstract, steal, and convert to their own use certain public funds in the custody and control of Dowdell as supply officer, and guarded by Harn as officer of the day; that, in pursuance of the conspiracy, the three defendants, with the intent and purpose of stealing, and converting the same to their own use, unlawfully, feloniously, fice of the Philippine constabulary to the and wilfully removed the same from the ofresidence of the said Harn in Catbalogan, in said province, and did there conceal the same, and during the night, in pursuance of said conspiracy, and for the purpose of con

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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was pronounced. The judge said he was unable to say whether there had been a formal arraignment or not. The clerk of the court of first instance certified a record of the proceedings in court, in which it appears that the defendants were asked whether they pleaded guilty or not guilty of the crime of which they were charged, and answered that they pleaded not guilty.

cealing the evidence of their crime, and of the calling of the case until after sentence deceiving their superior officers concerning the disappearance of said public funds, did take and remove the safe in which said funds had been kept in the office of the Philippine constabulary, and caused the same to be taken and conveyed out into the bay adjacent and there sunk in the waters of the bay. The public funds abstracted and taken consisted of Philippine coin and paper currency of the value of 9,971 pesos and 26 centavos, equivalent in value to 49,856 pesetas, in violation of paragraph 3 of article 390 of the Philippine Penal Code.

The official reporter of the court certified that his notes of the proceedings showed that the plaintiffs in error were arraigned, waived reading of the complaint, and pleaded not guilty. The certificate of the report

The accused were convicted, and the present plaintiffs in error sentenced to imprisoner was signed by him as court reporter of ment to six years and a day. Plaintiffs in error thereupon took an appeal to the supreme court of the Philippine Islands. In that court they were sentenced to eight years and one day imprisonment.

The case is brought here under § 10 of the act of July 1, 1902 (32 Stat. at L. 691, chap. 1369), giving this court the right to review, revise, reverse, modify or affirm final judgments or decrees of the supreme court of the Philippine Islands in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved.

In the supreme court of the Philippine Islands the attorney general asked that the case be sent back to the court of first instance for a new trial, because it did not appear that defendants had pleaded to the complaint, but the court overruled this application, and thereupon the court made the following order:

"Resolved, That the clerk of the court of first instance of Samar be, and he is hereby, directed to send forthwith to this court a certified copy of all entries in any book in his office referring to the case of the United States v. Louis A. Dowdell and Wilson W. Harn, and particularly of any entry relating to the arraignment of the defend. ants and to their plea. He is further directed to at once send to this court a certificate as to whether he was present at the separate trial of each of the defendants, Dowdell and Harn, and, if so, whether each or both of them were present at such trial, and the Hon. W. F. Norris, the judge who tried the case, is hereby directed to send to this court a certificate showing whether the defendants and each of them were present during the trial of said cause against Louis A. Dowdell and Wilson W. Harn."

To this order Judge Norris, judge of the court of first instance, made return, in which he stated that each of the defendants, now plaintiffs in error, was present in open court during the entire time of trial, from

the twelfth judicial district, and the judge of that district certified that the reporter was the duly appointed, qualified, and acting reporter of the district. The reporter's certificate adds nothing to that which the clerk certified.

The first six assignments of error cover objections to this action of the court in amending its record, and to the want of presence of the accused, and the failure to show by the record the arraignment of the accused, their plea to the complaint, and their presence during the trial.

If the supreme court of the Philippine Islands, in taking the action referred to for supplying the record of omissions, did not violate the Constitution or any statute of the United States, then we cannot disturb the judgment below on these assignments of error.

It is contended that the court erred in taking the statement of the judge of the court of first instance without the knowledge or consent of the plaintiffs in error, that the statement was not sworn to, that the plaintiffs in error were not given the opportunity to meet the witnesses face to face, or to be confronted with the witnesses, and therefore such statement was received in violation of article 6 of the Amendments to the Constitution of the United States, and § 5 of the act of Congress of July 1, 1902 (32 Stat. at L. 691, chap. 1369).

A like objection is made to the statement certified by the clerk of the court of first instance, and because his statement is not a certified copy of the minutes, or any part thereof, of the court, was not sworn to, and had no seal of the court attached.

As to the objection of the lack of oath to the certificates of the judge and clerk, and absence of a seal on the clerk's certificate of the proceedings, questions of that kind, where the court is correcting a record before it as an appellate tribunal, are addressed to the court making the order, which may determine for itself in what form it will accept such record. At least, there is no valid

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objection to such practice based on the Constitution or statutes of the United States. It is averred that the order of the supreme court of the Philippine Islands was made without the knowledge or consent of the accused, and that the plaintiffs in error had not the opportunity to meet the witnesses face to face, in violation of article 6 of the Amendments of the Constitution of the United States, and § 5 of the act of Congress of July 1, 1902 (32 Stat. at L. 691, chap. 1369), embodying the so-called Philippine Bill of Rights, which is substantially taken from the Bill of Rights of the Federal Constitution. Kepner v. United States, 195 U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797, 1 A. & E. Ann. Cas. 655. Section 5 of that act provides: "That in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel,

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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 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.

to have a speedy and public trial, to meet the witnesses face to face, etc." This is substantially the provision of the 6th Amendment of 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 If the assignments of error can be taken meet him face to face at the trial, who give to cover the objection that the accused were their testimony in his presence, and give not present when the court ordered the adto the accused an opportunity of cross-ex-ditional record to be made, we think there amination. It was intended to prevent the is no merit in this objection. In Hopt v. conviction of the accused upon depositions Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. or ex parte affidavits, and particularly to Ct. Rep. 202, 4 Am. Crim. Rep. 417, this preserve the right of the accused to test court held that due process of law required the recollection of the witness in the exer- the accused to be present at every stage of cise of the right of cross-examination. Mat- the trial. And see Howard v. Kentucky, tox v. United States, 156 U. S. 237, 242, 39 200 U. S. 164, 50 L. ed. 421, 26 Sup. Ct. Rep. L. ed. 409, 410, 15 Sup. Ct. Rep. 337; Kirby 189. In Schwab v. Berggren, 143 U. S. 442, v. United States, 174 U. S. 47, 55, 43 L. ed. 36 L. ed. 218, 12 Sup. Ct. Rep. 525, this 890, 893, 19 Sup. Ct. Rep. 574, 11 Am. Crim. court held that due process of law did not Rep. 330; 2 Wigmore, Ev. §§ 1396, 1397. 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.

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 witness, 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, supra. Documentary evidence to establish collateral facts admissible under the common law, may be admitted in evidence. Cooley Const. Lim. 2d ed. 450, note; People v. Jones, 24 Mich. 224.

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* 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,

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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 Bishop, Crim. Proc. § 730.

of March 3, 1891 (26 Stat. at L. 1096, chap.
561, U. S. Comp. Stat. 1901, p. 1549), to
the desert land act of March 3, 1877 (19
Stat. at L. 377, chap. 107, U. S. Comp.
Stat. 1901, p. 1548), evidenced the inten-
tion of Congress to remove the restrictions
of the earlier act upon the assignment of
a desert land entry, and was not merely in
recognition of the right that every entry-
man has under the public land laws of the
United States to make an assignment after
he has acquired the equitable title to the
land embraced within his entry.
Dig. $ 219.*

[Ed. Note.-For other cases, see Statutes, Dec.

For other definitions, see Words and Phrases, vol. 1, pp. 577-582; vol. 8, p. 7584.]

[No. 314.]

May 15, 1911.

N ERROR to the District Court of the

As to the objection that no indictment Argued April 12 and 13, 1911. Decided was found by a grand jury, as required by article 5 of the Amendments of the Constitution, there is no such requirement in the Philippine act of July 1, 1902. It is therein provided that "no law shall be en- of California to review an order sustaining acted which shall deprive any person of a demurrer to an indictment for perjury life, liberty, or property without due proc- in connection with the first annual proof in ess of law." This court has held that support of a desert land entry. Reversed due process of law does not require pre- and remanded for further proceedings. sentment of an indictment found by a grand jury. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 202.

The objection that the accused was not tried by a petit jury is disposed of in Dorr v. United States, 195 U. S. 138, 49 L. ed. 128, 24 Sup. Ct. Rep. 808, 1 A. & E. Ann. Cas. 697, 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.

*Other assignments of error are made; an examination 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. Affirmed.

Dissenting, Mr. Justice Harlan.

(221 U. S. 220.)
UNITED STATES, Plff. in Err.,

V.

WILLIAM B. HAMMERS.

STATUTES (8 219*)-DEPARTMENTAL CON-
STRUCTION ASSIGNABILITY OF DESERT
LAND ENTRY-ASSIGNS"-"ASSIGNORS.'

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The facts are stated in the opinion. Mr. Ernest Knaebel for plaintiff in error.

Messrs. L. H. Valentine and Nathan Newby for defendant in error.

Messrs. Oscar A. Trippet, J. M. Eshleman, LeCompte Davis, and William C. Prentiss as amici curiæ.

*Mr. Justice McKenna delivered the opinion of the court:

This case is here to review an order sustaining a demurrer to an indictment found against defendant in error, herein called defendant.

Omitting the repetitions and accentu ations which are usually found in indict ments, the following are the facts stated in the indictment in this case: On the 14th of August, 1907, one Granville M. Boyer made a desert land entry for certain lands under the public land laws of the United States, and particularly under and by vir tue of the act of Congress approved March 3, 1877 (19 Stat. at L. 377, chap. 107, U. S. Comp. Stat. 1901, p. 1548), the land being then open to entry, settlement, and reclamation, and he having the proper qualifications under the laws. The record was number 3,903. On the 26th of August he assigned, by an instrument in writing, his entry and his interest in the land which was the subject thereof to one Beulah Rose Beekler, she being a citizen of the

The Federal courts will accept as con- United States. She filed the assignment trolling the decision of the Land Depart- with the register and receiver of the Unitment that the use of the words "assignors" ed States land office of the Los Angeles, and "assigns" in the amendment of the act | California, land district.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
31 S. C.-R.

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