exhibiting very great learning and industry, has sought to show that the plaintiff in error was entitled to the free navigation of the Mississippi River, under various treaties and compacts, as well as by the National Constitution, and to support that contention has gone back to a time prior to the war between Great Britain and France in 1756, and has cited many cases in this court to maintain his position. That the navigation of the Mississippi River is free to every citizen of the United States is a fact not to be questioned at this time. No one could successfully dispute it, but we think that question is not involved in this case. When the ferryboat entered the boundaries of the State of Tennessee, and fastened up at the wharf in Memphis, and the plaintiff in error then sold liquors to customers as they asked for them, he became subject to the police laws of that State regarding the sale of intoxicating liquors. Enforcing that law, even if it did incidentally affect the free navigation of the Mississippi River, is justified under the act of Congress and the decisions of this court interpreting the same. As the boat is free to be navigated without molestation, let or hindrance, on account of any fees, taxes, licenses or otherwise, it cannot be held that the navigation of the Mississippi River is not free, because while within the boundaries of the State of Tennessee and under the authority of the act of Congress, the barkeeper on the boat is prohibited from there selling the liquors he carries with him, without first having paid the license demanded by the state statute. The case of State v. Frappart, 31 La. Ann. 340, was decided in 1879, before the act of Congress was passed, and is, therefore, not applicable to the facts of this case. The plaintiff in error also contends that when the Packet Company, being a corporation of the State of Arkansas, employed the ferryboat in interstate commerce between the States of Arkansas and Tennessee, the boat was a part of the territory of Arkansas, and the plaintiff in error, in selling liquors upon the boat, was located outside the jurisdiction of the State of Tennessee, even though, in fact, he sold the liquors while the boat was tied to the wharf in the city of Memphis. Many cases are cited in counsel's brief where tangible property was directly taxed by the State, and where, it was held, that the State had no jurisdiction, because, although the property was temporarily within the State, it was not there permanently. Hays v. Pacific Mail Steamship Co., 17 How. 596; Morgan v. Parham, 16 Wall. 471, were cases of vessels not abiding within the State where they were taxed, and were there but temporarily while engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid. See also Old Dominion Steamship Company v. Virginia, 198 U. S. 299. Here, however, there is no taxation of any property whatever, either of the boat or the plaintiff in error. He is simply called upon to pay a tax for the privilege of doing the business in which he was engaged-that is, the retailing of intoxicating liquors at the bar of the ferryboat-while that boat was within the jurisdiction of the State of Tennessee. The fact that he was so engaged within the actual territory of that State cannot be blotted out in such a case as this by any fiction suggested by the counsel for plaintiff in error. As we have said, we see no objection to this exercise of the power of the State, regard being had to the act of Congress already mentioned. The judgments of the Supreme Court of Tennessee are Affirmed. 199 U. S. Statement of the Case. TRONO v. UNITED STATES. ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS. No. 34. Argued October 31, 1905. Decided December 4, 1905. Plaintiffs in error were tried for murder in the court of first instance in the Philippine Islands and were acquitted of the crime of murder and convicted of the crime of assault and were sentenced to six months' imprisonment and a fine. They appealed to the Supreme Court of the Philippine Islands, which reversed that judgment and found them guilty of homicide and sentenced them to various terms from eight to fourteen' years' imprisonment and a fine. On a writ of error seeking to review the judgment on the ground that the action of the Supreme Court of the Philippine Islands amounted to putting the accused in second jeopardy, Held, that: There is a vital difference between an attempt of the Government to review a verdict of acquittal in the court of first instance, and the action of the accused in himself appealing from a judgment which convicts him of one offense while acquitting him from the higher one charged in the indictment. Kepner v. United States, 195 U. S. 100, distinguished. Where upon the indictment of a greater offense the one accused is found not guilty thereof but guilty of a lower offense included therein, and upon appeal from that judgment a new trial is granted by the appellate court, the accused can, on the new trial, be tried for the greater offense in the indictment, and such new trial does not amount to placing him in jeopardy a second time for the same offense within the meaning of the Federal Constitution or of the provisions in that regard in the Philippine Act of July 1, 1902, 32 Stat. 691. The appeal of the accused in such case amounts to a waiver to the plea of second jeopardy by asking that he be again tried for the offense for which he has once been convicted and if that request be granted he must take the burden with the benefit and go back for the new trial upon the whole case. Quære, whether the constitutional provision against second jeopardy was intended to apply to a judgment under these circumstances. In reversing the lower court and itself convicting the accused on such appeal, the Supreme Court of the Philippine Islands acted within its powers, and in ordinary procedure in the courts of that country under the act of July 1, 1902. THE plaintiffs in error were proceeded against in the court Argument for Plaintiffs in Error. 199 U.S. of first instance of the province of Bulacan, Philippine Islands, upon a complaint accusing them of causing the death of Benito Perez "with great cruelty and evident premeditation by means of blows given with the butts of guns, they coöperating one with the other." In other words, the accused were complained of as guilty of murder in the first degree. They were tried in the court above mentioned and were acquitted of the crime of murder and convicted of the crime of assault, which is included in the crime of murder charged in the complaint, and they were therefore sentenced by the court to suffer a penalty of six months' imprisonment and to pay a certain sum to the heirs of Perez, with subsidiary imprisonment in case of insolvency. All three of the accused appealed to the Supreme Court of the Philippine Islands from the judgment and sentence of the trial court. The Supreme Court, having heard the case, reversed the judgment of the court of first instance and convicted the accused of the crime of homicide (in substance, murder in the second degree), which is included in and is a lower degree of the crime charged in the complaint, but is a higher degree of crime than that of which the accused were convicted in the court below. Two of them (Angeles and Trono) were sentenced to fourteen years, eight months and one day, and Natividad to imprisonment for eight years and one day, and all three to the payment of an indemnity to the heirs of the deceased. The accused have brought the case here by writ of error to the Supreme Court of the Philippine Islands, for the purpose of reviewing the judgment of that court. Mr. Aldis B. Browne, with whom Mr. Alexander Britton and Mr. Maurice Kelly were on the brief, for plaintiffs in error: In convicting plaintiffs in error of homicide after their acquittal thereof by the court of first instance the Supreme Court of the Philippine Islands placed them for the same offense twice in jeopardy, in violation of the Declaration of Rights in section 5 of Civil Government Act of July 1, 1902, 32 Stat. 691; Kepner 199 U. S. Argument for Plaintiffs in Error. v. United States, 195 U. S. 100; United States v. Ball, 163 U. S. 662. Jeopardy terminates with an acquittal by the trial court, and no further proceedings may be had in the appellate tribunal without placing the accused under a second jeopardy. This principle is now settled law and as such incorporated into the criminal jurisprudence of the Philippine Islands. When the plaintiffs in error in this case were acquitted by the court of first instance of the charge of homicide their jeopardy was ended, and they could not again be tried for that offense without being put twice in jeopardy therefor. By appeal from the conviction of assault the accused did not waive their immunity from second jeopardy on the charge of homicide. Hopt v. Utah, 110 U. S. 574; Thompson v. Utah, 170 U. S. 343, are directly opposed to Harding v. United States, 1 Wall., Jr., 127, Fed. Cas. No. 15,301. In practically all jurisdictions where the common law prevails it has been uniformly held that the accused cannot waive his immunity from second jeopardy of punishment for the greater felony by appeal from conviction of a lesser. The question has been raised in many States where the common law prevails, and, we believe, has always been answered in the negative, except in Ohio and South Carolina. People v. Dowling, 84 N. Y. 478; Guenther v. People, 24 N. Y. 100; People v. Cignarale, 110 N. Y. 23, 30; Stuart v. Commonwealth, 28 Gratt. 950; State v. Martin, 30 Wisconsin, 216; State v. Hills, 30 Wisconsin, 416; State v. Belden, 33 Wisconsin, 120; Slaughter v. State, 6 Humph. 410; Brennan v. People, 15 Illinois, 511; Barnett v. People, 54 Illinois, 325; Sipple v. People, 10 Bradwell, 144; Morris v. State, 8 S. & M. (Miss.) 762; Johnson v. State, 29 Arkansas, 31; State v. Tweedy, 11 Iowa, 350; State v. Ross, 29 Missouri, 32; State v. Kattleman, 35 Missouri, 105; Johnson v. State, 27 Florida, 245; Golding v. State, 31 Florida, 262; Dennison v. State, 31 La. Ann. 847; State v. Murphy, 13 Washington, 229; Bell v. State, 48 Alabama, 684; Berry v. State, 65 Alabama, 163; Brown v. United States, 52 S. W. Rep. 56; Jones |