Argument for Plaintiffs in Error. 199 U.S. v. State, 13 Texas, 168; State v. Stevens, 29 Oregon, 85; People v. Knapp, 26 Michigan, 112, 113; People v. Comstock, 55 Michigan, 405, 407; George v. State, 59 Nebraska, 163; State v. Kettle, 2 Tyler (Vt.), 472. In several States there are statutory provisions permitting the retrial for the greater offense, but no such statute exists in the Philippine Islands; see § 270, Kentucky Code of Practice; Rev. Stat. Indiana, § 141; § 274, Code of Kansas. On the strength of these statutes the courts of these States have held that where a new trial is granted the accused may be again tried for the greater offense of which he was acquitted on the first trial. Commonwealth v. Arnold, 83 Kentucky, 1; Morris v. State, 1 Black, 37; Veatch v. State, 60 Indiana, 291; State v. McCord, 8 Kansas, 232. In California the court held that, on new trial, the accused cannot again be prosecuted for any crime of which he was acquitted on the first trial without violating the second jeopardy clause of the state constitution. People v. Gilmore, 4 California, 376; People v. Gordon, 99 California, 227; see also Waller v. State, 104 Georgia, 505. Against these cases are some in Ohio and South Carolina holding that the appeal amounts to a waiver. These cases show that in Alabama, Arkansas, California, Florida, Illinois, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nebraska, New York, Oregon, Tennessee, Texas, Vermont, Virginia, Washington and Wisconsin, and in the Indian Territory the rule is the accused cannot waive his immunity from second jeopardy, and on new trial he can only be prosecuted for the crime of which he stood convicted. In Kentucky, Indiana and Kansas there is a different rule based on statutory provisions, to the effect that "a new trial places the parties in the same position as if no trial had been had." The California courts, however, hold, on a similar statutory provision, that there can be no second prosecution for the offense of which the defendant was acquitted on first trial. In Georgia and Missouri the common-law rule has been changed by the constitution, and in Ohio 199 U. S. Argument for the United States. and South Carolina the courts have adopted a different doctrine from that prevailing at the common law. Thus, nineteen States and the Indian Territory have held that there can be no waiver. In Ohio and South Carolina the courts have set aside the common-law rule. In the five remaining States the statutory or constitutional provisions have expressly changed the rule where new trial is granted on defendant's motion. The English courts have gone so far in support of the maxim that no man ought to be twice brought in danger of his life for one and the same crime that they have always refused a new trial in cases of felony where the indictment is valid. Rex v. Mawbey, 6 T. R. 619; Regina v. Bertrand, L. R. 1 P. C. 520. See United States v. Gibert, 2 Sumn. 19; People v. Comstock, 8 Wend. 549. The Solicitor General for the United States: The right of trial by jury is not involved in this case, Dorr v. United States, 195 U. S. 138, 148; nor the right of the Government in accordance with the Spanish procedure to appeal from a judgment of acquittal. That claim of the prosecuting authority in the Philippine Islands is adjudged to be a violation against the guarantee of second jeopardy. Kepner v. United States, 195 U. S. 100. The only issue here is a different and distinct aspect of the second jeopardy question. The sole question is whether the Supreme Court of the Philippines, by adjudging the defendants guilty of homicide upon the hearing of their appeal from the judgment of the court of first instance which found them guilty of assault only, placed them in jeopardy a second time for the crime of homicide, in violation of the second jeopardy provisions of the act of July 1, 1902, 32 Stat. 692. The right of appeal from courts of first instance to the Supreme Court or Audiencia was conferred by § 43, G. O. No. 58, December 18, 1899, 1 Laws Phil. Com., 1087, §§ 32, 42, 43, 50. The jurisdiction of courts of first instance to try offenses of the character involved here is conferred by the act of the Philip Argument for the United States. 199 U. S. pine Commission of June 11, 1901, § 56, No. 136, 1 Laws Phil. Com., 252. That act abolished the existing Audiencia or Supreme Court, and substituted the present Supreme Court of the Philippines, § 39, providing for appeals to that court from judgments of courts of first instance, § 18. Under these provisions of law and the decisions thereon the Supreme Court has jurisdiction on appeal in criminal cases identical with that of the old Audiencia, and has authority to review the whole case, both upon the facts and the law. United States v. Atienza, 1 Philippine Rep. 736; United States v. Abijan, 1 Philippine Rep. 83. These decisions are in harmony with those of this court to the effect that in general an appeal removes a cause entirely, subjecting the law and facts to a review and retrial. United States v. Goodwin, 7 Cr. 108; Dower v. Richards, 151 U. S. 658. An appeal in a criminal case is not a necessary element of due process of law, but is merely a privilege accorded the accused by statute, and any one who avails of the privilege assents thereby to the conditions attached to it. McKane v. Durston, 153 U. S. 684; Andrews v. Swartz, 156 U. S. 272; Kohl v. Lehlback, 160 U. S. 293; Murphy v. Massachusetts, 177 U. S. 155. The state authorities are in full accord. Commonwealth v. Arnold, 83 Kentucky, 1; Briggs v. Commonwealth, 82 Virginia, 554; State v. Hart, 33 Kansas, 218, 222; People v. Palmer, 109 N. Y. 413. As to the right to increase the punishment, under Spanish procedure in the Philippines, as continued by us, if an accused were convicted by the trial court, the Audiencia upon review might raise or lower his punishment or acquit him altogether. United States v. Kepner, 1 Philippine Rep. 397. If the defendants felt aggrieved at the decision, and could produce new evidence, a trial de novo before the court of first instance was open to them under the law, § 42, G. O. 58. By taking their appeal defendants assented to the conditions upon which it was granted and thereby waived any right to plead the judgment of the court of first instance as a bar to their conviction for a higher offense by the Supreme Court upon appeal. 199 U.S. Argument for the United States. This Philippine proceeding is not a review on alleged errors of law alone, or an ordinary motion for a new trial, which in this country, if granted, would result in sending the case back to another jury for a new trial. This appeal of defendants is itself a new trial on their own motion, and is properly submitted as such to the appellate court. When in any criminal case in which a single offense is charged a verdict of guilty is set aside or reversed and a new trial granted, the effect is to annul the judgment below as effectually as if there had been no trial. United States v. Keen, 26 Fed. Cas. 686; 4 Blackstone, 336, 337; Lockwood v. Jones, 7 Connecticut, 436; Zaleski v. Clark, 45 Connecticut, 397; Rassmussen v. State, 63 Wisconsin, 1; Bailey v. State, 29 Georgia, 579; Regina v. Drury, 3 Cox Crim. Cas. 544. Uni On the main question, whether the accused was twice in jeopardy, the state courts are not in harmony. But the sound view is, despite adverse authorities, that a new trial on defendant's motion wipes out the previous determination and leaves no former jeopardy against the constitutional inhibition. ted States v. Harding, 26 Fed. Cas. 131; United States v. Keen, 26 Fed. Cas. 686; People v. Palmer, 109 N. Y. 413; State v. Bradley, 67 Vermont, 465; State v. Behmer, 20 Ohio St. 572; Commonwealth v. Arnold, 83 Kentucky, 1; Bailey v. State, 26 Georgia, 579; Small v. State, 63 Georgia, 386; State v. Terreso, 56 Kansas, 126; Kansas v. McCord, 8 Kansas, 232; Veatch v. State, 60 Indiana, 291; Bohanan v. State, 18 Nebraska, 57. The reasoning of the numerous cases which follow the contrary doctrine is not satisfactory. That there is no implied acquittal which is conclusive is the better rule, and so far as any rule at all has been laid down by Federal judges, they take this ground. If constitutions mean what is claimed, statutes providing that a new trial annuls the previous judgment are invalid. But Mr. Justice Miller in Kring v. Missouri, 107 U. S. 221, held that a State could abolish by constitutional amendment or by legislation the rule of implied acquittal of a higher offense upon conviction for a lower grade, and reopen the case upon a new trial to the entire original charge. The Philippine law is tantamount to such a statute in a State; and Justices Grier and McLean have said or implied, in United States v. Harding and United States v. Keen, supra, that the Federal Constitution does not throw the protection against second jeopardy around a criminal who seeks a new trial, MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court. The plaintiffs in error seek a reversal of the judgment in their case on the ground that the Supreme Court of the Philippine Islands had no power to reverse the judgment of the court of first instance, and then find them guilty of a higher crime than that of which they had been convicted in that court, and of which higher crime that court had acquitted them, and they contend that such conviction by the Supreme Court of the islands was a violation of the act of Congress, passed July 1, 1902, 32 Stat, 691, a portion of the fifth section of that act providing that "no person for the same offense shall be twice put in jeopardy of punishment.' This language is to be found in connection with other language in the same act, providing for the rights of a person accused of crime in the Philippine Islands. The whole language is substantially taken from the Bill of Rights set forth in the Amendments to the Constitution of the United States, omitting the provisions in regard to the right of trial by jury and the right of the people to bear arms, and containing the prohibition of the Thirteenth Amendment, and also prohibiting the passage of bills of attainder and ex post facto laws. The important question to be determined is, whether this action of the Supreme Court of the Islands did violate the act of Congress, by placing the accused twice in jeopardy. The meaning of the phrase, as used in the above-mentioned act of Congress, was before this court in Kepner v. United |