# Diaz v. United States > Supreme Court of the United States · February 19, 1912 · 223 U.S. 442 URL: https://www.frixlaw.com/law-library/cases/9418217 ## Case - **Full name:** Diaz v. United States - **Court:** Supreme Court of the United States - **Decided:** February 19, 1912 - **Citations:** 223 U.S. 442; 32 S. Ct. 250; 56 L. Ed. 500; 1912 U.S. LEXIS 2246 - **Precedential status:** Published - **Opinion:** Dissent by Lamar - **Judges:** Van Devanter, Lamar - **Cited by:** 886 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Limited by United States v. Martinez, 923 F. Supp. 861 (1996). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9418217 ## How later opinions describe it (automated extraction) - holding that a defendant waives 13 right to object to a hearsay statement on confrontation grounds when he or she offers the statement - holding that double jeopardy was not implicated when a defendant was tried for assault, then subsequently tried for murder after the victim of the assault passed away a few weeks later - noting that persons in custody historically could not waive right to presence in felony trials, but that an accused not in custody who flees after trial com‐ mences in his presence has validly waived right to presence at any remaining proceedings - stating that a criminal defendant’s right to be present at every stage of trial is “scarcely less important to the accused than the right of tidal itself’ - holding that a defendant waives13 right *293 to object to a hearsay statement on confrontation grounds when he or she offers the statement ## Opinion text *460 Mr. Justice Lamar, dissenting. I dissent, because the trial was conducted in accordance with the rulés of procedure of the Spanish law, and in disregard of the fundamental changes made by the Bill of Rights of the Philippine Islands. The defendant was not given a speedy trial, but was kept in jeopardy during repeated and lengthy suspensions. He was not confronted with the witnesses, but the court accepted his telegraphic waiver, and the trial thereafter proceeded without the defendant being .present. Witnesses were examined, argument of counsel made, and three months later sentence was pronounced, all in his absence. On appeal the judgment was reversed by the Supreme Court of the Philippines, not for the purpose of setting the judgment aside, but to inflict a penalty of more than twofold severity and to raise the term of imprisonment from six to fourteen years in the penitentiary. The act of July 1, 1902, regulating the government of the Philippine Islands, does not provide for trial by jury, nor does it destroy the power of the appellate court to change the sentence in a criminal case. But the absence of the right to trial by jury, and the presence of the danger of appeal make it all the more important to enforce those safeguards copied from the Constitution of the United States and granted the people of those islands. Barring the right to indictment and trial by jury the defendant charged with a felony before a Philippine court has substantially the same rights as though he were on trial in a United States court. And if this conviction can stand, it must be because the same things would be proper in this country, where the language of the Constitution is, in this respect, substantially the same as that of Philippine Bill of Rights. Sec. 5. “That in all criminal prosecutions the accuséd *461 shall enjoy the right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to compel the attendance of witnesses in his behalf. “That no person shall be held to, answer for a criminal offense without due process of law; and no person for the same offense shall be twice put in jeopardy of punishment, nor shall be compelled in any criminal case to be a witness against himself.” Not only the fact that the defendant’s liberty is involved, but the further fact that the decision will be a precedent in other cases, justifies a brief statement of the facts and reasons on which this dissent is based. The opinion proceeds upon the theory that while a defendant has the right to be confronted with the witnesses, he may waive that privilege in all except capital cases. In support of that proposition many authorities are cited. In some of these cases the defendant was voluntarily absent from the court room, for a short time, without the attention of the court being called to the fact. In others the defendant escaped while the trial was in progress. In others, having given bail, he failed to return in time to hear the verdict read. In all of them the court’s decision was expressly, or by necessary implication, placed upon the ground that the defendant could not take advantage of his own wrong, and render a trial nugatory by escape or making an improper use of his bail. These cases undoubtedly announce a correct rule. For, when the trial of a felony begins it ought to proceed in due and orderly course to verdict. The defendant has no right to force the court to order a mistrial. If he escapes or takes advantage of his bail to remain away during the trial, the court proceeds, not because it is willing that he should be absent, but because it is obliged to go on without him. But because the court is compelled so to act under *462 such facts, it does not follow that it could or would consent for him to be absent during the trial; or, that it would accept a formal waiver from him of the right to be confronted by the witnesses, or to be present when sentence was pronounced. As said in Hopt’s Case, 110 U. S. 579 : “The argument to the contrary necessarily proceeds, upon the ground that he .alone is concerned as to the mode by. which he may be deprived of his life or liberty. This is a mistaken view. . . . The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. ... If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. ” It is true, as pointed out in the opinion of the court here, that this was said in a case where the defendant was on trial for his life. But the principle was announced in language which, repeatedly and expressly,- made it applicable to felonies and wherever the defendant might be deprived of his life or liberty. The defendant, in such cases, cannot waive his right to be present when his liberty is involved, any more than when his life is at stake. And it is a misnomer to say that when he escapes or refuses to be present that he has waived the right. He has made it impossible for the court to give him his rights. But, even if the doctrine of waiver could be extended beyond these cases of necessity, arising from flight and voluntary absence after the trial began, it would not apply in the present instance. The case was conducted from beginning to end as though it were civil litigation, with several suspensions of the trial — once for fourteen days— once for thirty days — and with three months between the argument and the rendition of the judgment. There was in this case, therefore, no compelling necessity, as in those cited in the opinion of the majority. The court accepted the defendant’s waiver, as though he alone had an interest *463 in the method, of trial, — ignoring the fact that, as said in the Hopt Case, “the public had an interest in his life and liberty.” In order to make this want of necessity clear it will be necessary to state some of the facts as they appear in this record. The defendant liyed in the town of San Carlos in the Province of Occidental Negros. He was charged with having killed Alcanzaren in that municipality. After a preliminary trial he was bound over to answer for the charge of homicide — equivalent to manslaughter and not punishable by death. He gave bond, and was subsequently brought to-trial before the Court of First Instance, sitting at Bacolod, which, according to the maps is about 30 miles from San Carlos and on the other side of the Island. The distance between the two' places by water is about 100 miles. Diaz was arraigned and plead “not guilty” September 26,1906. The case was several times continued, the defendant once or twice consenting. But on August 15,1907, eleven months after arraignment, the trial began — the defendant and his counsel being present. Two witnesses for the prosecution were examined. “At the request of the Fiscal the hearing was suspended and an order was issued for the arrest of” three absent witnesses. The record does not show to what date the court adjourned.. But fourteen days later it reconvened, the defendant and his counsel again being present. The trial was resumed August 29, 1907, and two witnesses for the prosecution were examined. The record does not show why the proceedings were again suspended, nor the date to which the court adjourned. But it does appear that after a delay of thirty days the court again reconvened, and that the judge had received a telegram from Diaz. It is copied into the record, and reads as follows: *464 “San Carlos, Sept. 20/07. Judge Jocson, Bacolod: I waive right to be present during examination of government witnesses. Gabriel Diaz.” Other entries of the same date show that “On September 20, 1907, in open court, the Honorable Vincente Jocson of the Tenth District presiding, the Provincial Fiscal arid the counsel for defendent being present, the accused himself having waived his right to be present at the trial according to a telegram just received from him, the trial of this case was resumed and Pelagio Carbajosa, a witness for the prosecution, was examined. The prosecution then rested and counsel for defendant only introduced in evidence certified copy of the proceedings,” before the Justice Court. “. . . The trial was then adjourned for the purpose of allowing the Fiscal to introduce evidence in rebuttal. ” The next day the court again met, the Judge, Provincial and attorney for the defendant being present, “The trial of this case was resumed and ... a witness for the prosecution was examined in rebuttal. The Fiscal then rested his case and counsel for the accused waived his bight to introduce further evidence. Both parties having rested, the Fiscal and counsel for the defendant respectively made their oral argument, and the court declared the trial closed and'took, the case under advisement.” The court, however, did not adjourn to a given date, nor was there even a provision that the defendant and his counsel should be notified of the time and place when judgment would be entered and sentence pronounced. The court waited ninety days. It then delivered an opinion, entitled in the case, and dated “Bacolod, Dec. 24, 1907,” in which he discussed the evidence, and concluded by finding the defendant guilty and sentencing him to *465 confinement in the penitentiary for six .years and one day. Notice of this sentence was evidently received by the defendant, because on January 17, 1908, he entered an appeal to the Supreme Court of the Philippines. One of the judges of that court held that “there was no competent evidence to sustain a conviction,” but the majority, “notwithstanding the deficiencies and irregularities that are observable in the prosecution of this case,” reversed the case, not for the purpose of setting aside the conviction, but solely for the purpose of increasing the penalty. It thereupon séntenced him to a penalty of fourteen years of reclusion temporal, with the accessory penalties of Art. 59 of the Penal Code. From these facts it will be seen that the Philippine Court of First Instance was not in the situation of an American court with a jury impanelled and under the necessity either of proceeding to verdict in the defendant’s absence or of discharging the jury and rendering the trial nugatory. It assumed that if Diaz was willing to be absent the court could accept his waiver. The procedure adopted was evidently in accordance with the judge’s view of the Spanish law, but in disregard of the fact that, under the Bill of Rights, when the trial began the defendant stood upon his deliverance. There could thereafter be the customary adjournments from day to day, but no suspensions of the trial except “in case of urgent necessity,” “and for very plain and obvious causes.” United States v. Perez, 9 Wheat. 579 ; Thompson v. United States, 155 U. S. 271, 274 . At common law the trial of felonies was required to be completed at one sitting. Of necessity this rule had to be modified, and adjournments from day to day were finally allowed. There are a few instances in which the case was suspended for . a reasonable time, in order to permit the attendance of witnesses who had been unavoidably de *466 layed, or for other proper cause, in the discretion of the judge conducting the trial. But without regard to the delay of eleven months between arraignment and trial, the extremest extension heretofore allowed is insignificant by comparison with those here, first for two weeks and then for thirty days. In both- these instances the record fails to show that the defendant objected, and it may be that if he can waive the right to be confronted by the witnesses he may waive the guaranty against multiplied jeopardy. For that right is not greater than the right to be present at every stage of the trial. The court being of the opinion that the defendant need hot be present at the trial, it is not surprising that he thought the defendant might also be absent when judgment was rendered and sentence pronounced. It is true that the Philippine Code expressly declares that the defendant “must be personally present at the time of pronouncing judgment if the conviction is for a felony.” But that could no more add to the Bill of Rights, than a statute could repeal the requirement that the defendant should be confronted with.the witnesses, and be present at' every stage of the trial. That the defendant was not personally present is both the legal inference and the natural conclusion from what appears in the record. When the court took the case under advisement on September 21, 1907, it passed no order indicating when the decision would be delivered, even if it had the right' to hold the defendant in suspense for days and weeks and months. There was, therefore, no reason for the defendant to be present at Bacolod on December 24, in anticipation that judgment would be entered on that date. There are cases which hold that where the record shows that the defendant was present when the trial began, there is a presumption that he remains in attendance, and' it is not necessary to repeat the statement in the record, from day to day, so as to affirmatively show that *467 he was present. In the present case the presumption would be the other way, because, having been absent during the last two days of the trial, there is no reason to assume that he was present when, after an indeterminate suspension, the court reconvened. At any rate there is peculiar room for the application Of the rule in Federal courts announced in Lewis v. United States, 146 U. S. 370, 372 , that “where the personal presence is necessary in point of law, the record must show the fact.” In my opinion the conviction was not only, erroneous because the defendant was not present when the witnesses were examined and argument made, but having been unlawfully put in double jeopardy and judgment equivalent to verdict having been pronounced in his absence, he is entitled to his discharge. Nolan v. State, 55 Georgia, 521. It may be that such views would work a radical change in criminal procedure in the Philippines. But when Congress incorporated the language of the Sixth Amendment into the act of July 1, 1902, it must have intended to make just such changes, and to require the trial to be conducted in the American manner, and, among other things, also to prohibit suspensions and undue prolongation of the hearing, so as thereby to prevent the pain and anxiety which must inevitably be suffered by a prisoner who is thus kept on a mental rack. These considerations compel me to dissent, and to add, that if the effort to review this judgment can lawfully result in having the sentence more than doubled, it imposes a penalty on the exercise of the right, and makes it worse to appeal than to submit to conviction on a record which, the Supreme Court of the Philippines admitted, presented “irregularities and deficiencies.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9418217. Public record. Not legal advice.