
    ONG CHANG WING v. UNITED STATES.
    ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.
    No. 418.
    Argued October 21, 1910.
    Decided November 7, 1910.
    As applied to criminal- procedure, if the accused has been heard in a court of competent jurisdiction and proceeded against under the orderly processes of law, and only, punished after" inquiry and investigation on notice with opportunity to be heard, and judgment. awarded within the authority of'a constitutional law, he has not been denied due process of law.
    The lawmaking power in the Philippine Islands has power to preserve by statutory enactment the right to prosecute and punish offenses committed prior to the repeal of an act 'defining and punishing the offense; and a decision of. the Supreme Court of the Philippine Islands holding that one who committed the offense before the repeal of the act can be punished after the repeal, does not amount to' a denial of due process of law within the meaning of the due process clause of the act of July 1, 1902.
    The facts, which involve the validity of a conviction in the Philippine Islands and the construction of the act of July 1, 1902, are stated in the opinion.
    
      Mr. Charles F. Consaul, with whom Mr. Charles C. Heilman and Mr. frank B. Ingersoll were on the brief, for plaintiffs in error:
    The defendants were .prosecuted under article 343 of the Penal Code and the act of the Philippine Commission of October 9, 1907, which e&pressly repealed article 343. There being no saving clause regarding the prosecution of offenses under, the repealed articles of the Penal Code, defendants are under both American and Spanish law entitled to an acquittal. 12 “ Cyc.” 144..
    The quotation from Pacheco in United States v. Cuna, 
      12 Philippine Rep. 245, does not sustain the decision as there, are intimations and even exact declarations to the contrary in Pacheco; aiid see'l Yiada’s Codigo Penal, 402.
    Under “due process of law,” as that £erm is used and understood in the United States, and as it was presumably used and understood by Congress when the Philippines Act was enacted, it is not consistent that plaintiffs be punished for infraction of a law which no longer exists on the statute books of the Philippine Islands. See § 10 of the Philippines Act of 1902. This court should construe the term “due process of law” in the same manner as though this case arose -in one of the Territories of the United States, unhampered by any theory advanced by the Supreme Court of the Philippines as to what may have been the Spanish law relative to the effect of the repeal of a penal statute.
    The Supreme Court of the Philippines erred in its statement of the-rule incident to the Spanish law upon this point.
    Even were the Supreme Court of the Philippines correct in its statement of the Spanish rule, yet still its judgment should be reversed because utterly repugnant to the definition of the term “due process of law” as used by Congress in the Philippines Act.
    There is no substantial difference between'the repeal of the statute uiider which the accused is prosecuted and a pardon. Both wipe out the offense and neither can be ignored by the court.
    The decision of the Supreme Court of the Philippines was not in accord with the principles of the common law. United States v. Peggy, 1 Cranch, 103; Yeaton v. United States, 5 Cranch, 281. After the expiration or repeal, of a law, no penalty can -be enforced, nor punishjuént inflicted, for violations of the law committed'-'while it was in force,’ unless special provision be made for-that purpose by statute. 12 “ Cyc.” 144. And see Jordan v. State, 15 Alábáma, 746; Commonwealth v. Jackson, 2 B. Mon. (Ky.) 402; Keller v. State, 12 Maryland, 322; Commonwealth. v. McDonough,' 13 Allen (Mass.), 581; Commonwealth v. Marshall, 11 Pick. 350; Teague v. State, 39 Mississippi, 516; State v. Long, 78 N. C. 571; Commonwealth v. Duane, 1 Binn. (Pa.) 601; Commonwealth v. Dolan, 4 Pa. Co. Ct. 287; State v. Lewis, 33 S. E. Rep. 351 (S. C.); State v. Mansel, 52 S. C. 468; Greer v. State, 22 Texas, 588; Halfin v. State, 5 Tex. App. 212; Roberts v. State, 2 Overt. (Tenn.) 423; Wharton v. State, 5 Coldw. (Terin.) 1; Bennett v. State,-2 Yerg. 472 (Tenn.).
    Even when an indictment has been found and a prosecution is pending under a statute at the time of its repeal, without a saving clause, there can be no conviction under the statute after the repeal. Carlisle v. State, 42 Alabama, 523; Griffin v. State, 39 Alabama, 541; Mayers v. State, 7 Arkansas, 68; People v. Tisdale, hi California, 104; Day v. Clinton, 6 Ill. App. 476; Hartung v. People, 22 N. Y. 95; United States v. Passmore, 4 Dali. 372; United States v. Finlay, 25 Fed. Cas., Nó. 15,099; Regina v. Mawgan, 8 A. & E. 496.
    Even when the statute is repealed after the áccused has been cónvicted, judgment must be arrested. Commonwealth v. Jackson, 2 B. Mon. (Ky.) 402; Commonwealth y, Kimball, 21 Pick. 373; Commonwealth v. Marshall, 11 Pick. 350.
    And if an appeal from a conviction is pending when the statute is repealed, the judgment of conviction must be set aside- and the indictment quashed. Speckert v. Louisville, 78 Kentucky, 287; Smith v. State; 45 Maryland, 49; Keller v. State, 12 Maryland, 322; Cómmohwealth v. Kim-ball, 21 Pick.' 373; Commonwealth v. Marshall, 11 Pick. 350.
    This is so 'even, though' argument has been heard and the appeal' dismissed, Keller v. State, 12 Maryland, 322, or where the repeal takes place pending the proceedings, 
      State v. Henderson, 13 La. Ann. 489; Wall.v. State, 18 Texas, 682.
    A party cannot be convicted, after the law under which he may be prosecuted has been repealed, although the offense may have been committed before repeal. Dwarris, 670; 1 Kent, 465; State v. Railroad Co., 12 G. & J. 399. The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior court. Yeaton v. United States, 5 Cranch, 581; United States v. Ship Helen, 6 Cranch, 203; United States v. Preston, 3 Peters, 57; Maryland v. Railroad Co., 3 How. 534; Smith v. State, 45 Maryland, 49.
    
      Mr. Edwin P. Orosvenor, Special Assistant to the Attorney General, with whom Mr. William S. Kenyon, Assistant to the Attorney General, was on the brief, for the United States:
    The right asserted by* plaintiffs in error that they go free, in spite of the fact that statute No. 1757, which repealed article 343, preserved gambling among the list of punishable offenses, is not an element of due process of law.
    While it was the intention of Congress by § 5 of the. act of July 1, 1902, to carry some at least of the essential principles of American .constitutional jurisprudence to these islands, and to engraft them upon the law of this people newly subject to our jurisdiction, Kepner v. United States, 195 U. S. 100, 122; Dorr v. United States, 195 U. S. 138; Trono v. United States, 199 U. S. 521; Serra v. Mortiga, 204 U. S. 370, 474; Weems v. United States, 217 U. S. 349, the guarantees extended to the Philippines are to be interpreted as meaning what the like provisions meant in the United States at the time when Congress made them applicable to the Philippines.
    In this case the right, asserted by the plaintiffs in error is not an element of “due process of law”- within the meaning given to that phrase by.any American court at the time of the enactment of the Philippine bill. See Twining v. New Jersey, 211 TJ. S. 78, 110, holding that exemption from compulsory incrimination is. not an element of “due process of law.” '
    It is equally cleat that the phrase does not include a right like that assented by these plaintiffs in error.'
    As the right asserted by the plaintiffs in error does not come within the conception of due process of law, the writ of error must be dismissed,' for there is no' other ground'on which this court can take jurisdiction.
    The Philippines assembly had authority to repeal article 343. The repeal- of the statute under which they had been convicted did not impair any rights of the defendants.
    Whether the Philippine legislature in repealing article, 343 should. or should not make impossible the execution of sentences imposed under jt- was a matter for the Philippine legislature. Whether its act did or did not have that effect was a question for the Philippine courts to decide. United Stales v. Cuna, 12 Phil Rep. 241.
    This decision of. the Supreme Court of the Philippine Islands is conclusive here. Perez v. Fernandez,. 202 TJ. S. 80; Kepner f. United States, 195 TJ. S. 100, 122. Also see the President’s instructions for the guidance of the commissioners ofUhe Philippine Islands, April 7, 1900, Comp. Acts of Philip. Comm. 14, ratified by Congress July 1, 1902, 32 Stat. 691.
    Even if the rule of the common law. were as stated by the plaintiffs in error, the common law has. not been extended to the Philippines by any act of Congress. It can' be incorporated into the law of those islands only by legislative enactment.
    The decision of the Supreme Court of the Philippines was, however, in accord with the principles of the com- . mon law. A repeal of a criminal -statute for the. purpose of abolishing the crime is to be distinguished from a repeal effected by a merely superseding statute.
    After final judgment is pronounced, the power of the court over the subject-matter is at an end; the ministerial act of executing the sentence is all that remains to be done. State v. -Addington, 2 Bailey’s S..C. Law, 516; Aaron v. The State, 40 Alabama, 307.
   Mr. Justice Day

delivered the opinipn of the court.

The plaintiffs in error bring this case here for review by writ of error, to the Supreme Court of the Philippine Islands, upon the ground that the effect of the judgment of that court has been to deprive them of due process of law, in violation of § 5 of the act of Congress of July 1, 1902, c. 1369, 32 Stat. 691, 692, enacting'the due process clause of the Federal Constitution as a part of the statute for the government of those islands. No other question is presented in the record which we can review.

The plaintiffs in error were tried, convicted and sentenced on October 4, 1907, in the court of first instance, for violation of article 343 of the Philippine Penal Code, which makes it an offense to conduct a gambling house, or to be a banker therein.' Plaintiffs in error were sentenced in the court of first instance to two months and one day of arresto mayor, with the accessories of article 61, and to pay a fine of 625 pesetas, and in default thereof to suffer subsidiary imprisonment, not to exceed one-third of the principal penalty, and costs.

Upon appeal to the Supreme Court of the Philippine Islands that court held that the guilt of the appellants was fully .established,, and.affirmed the judgment, of the court of first instance. In the Supreme Court the plaintiffs in error made the objection, which is the foundation of the proceedings here, that they were convicted under the provisions of article 343 of the Philippine Code for an offense committed on the fifteenth of September, 1907, that thereafter the Philippine Commission, on October 9, 1907, by an act numbered 1757, repealed, among others, article 343 of the Philippine Penal Code, and that consequently the court had no authority to impose upon the appellants the penalty prescribed in the repealed article of the code. The Supreme. Court of the islands' denied this contention upon the authority of another decision in the same court. United States v. El Chino Cuna, 12 Philippine Rep. 241. A reference to the Cuna case shows that the Supreme Court of the Philippines, construing the articles of the local Penal Code, and applying what was deemed the applicable Spanish law, held that whether an act was punishable after the repeal of the act under which it was undertaken to be inflicted depended upon whether or not at the time of the commission of the act there was a law in force which penalized it. The court reserved the question whether the punishment provided in the repealing act could alone be inflicted if such penalty is more; favorable, to the accused than that prescribed in the former' act, because of the provisions of article 22 of the code, which provides that penal laws shall have a retroactive effect in so far as they favor persons convicted of a crime or misdemeanor.

It appears that the new act, No. 1757, which took the place of the repealed act, article-No. 343 of the Philippine Penal Code, did not undertake to wipe out the offense of gambling, or keeping a gambling house in the Philippine Islands, but substantially reenacted the former law with more elaboration and detail in its provisions than were contained in the former law.

In the new act § 2 defines a gambling house to be a building or structure or vessel, or part thereof, in which gambling is frequently carried on. -Under article 343 of the Penal Code of the Philippine Islands, as it existed when the sentence in this case was imposed, the bankers and proprietors of houses where games of chánce, stakes or hazard are played were punished. The decision of the court of first instance, found in the record in this case, held that, in order to punish the crime of gambling, in accordance with article 343 of the Penal Code, it must appear that the house where the gambling took place was a house devoted to encouraging gambling, as held in various decisions of the Supreme Court of Spain applicable to the case at bar, and that such facts had been fully established by the proof in the case.

The sentence imposed was within the limits provided in act No. 1757, under which the keeping of' a gambling house can be punished. The case, therefore, presented for our consideration is one of conviction under a statute which was repealed after the conviction and sentence in the court of first instance, the repealing act also providing for the punishment of .the same offense and within limitations not exceeded by the sentence imposed under the former act.

The precise qiiestion then is,. Did the Supreme Court of the Philippine Islands deny the plaintiffs in error due process of law in affirming a conviction under the circumstances stated? It is argued that the Supreme Court of the Philippines misapplied the provisions of the Penal Code and the Spanish law in the light of which it was interpreted. On the part of the Government it is insisted' that, even at common law, the affirmation of a conviction under a law valid when it was had was not erroneous, and that it was within the power of a reviewing.court so to-do**:, but we are not concerned with this question. Our sole province is to determine whether the judgment of' the Supreme Court of the Philippine Islands amounts to a denial of due process of law.

This court has had frequent occasion to consider the requirements o,f due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against «under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law. Rogers v. Peck, 199 U. S. 425, 435; Twining v. New Jersey, 211 U. S. 78, and the cases therein cited.

In the present case there can be no .doubt that. the. lawmaking power in the Philippine Islands could by statutory enactment have preserved the right to prosecute and punish offenses committed in violation of the former law while in force in the islands, notwithstanding the repeal of the act. The effect of the decision of the Philippine Supreme Court is to hold that under the law and local statutes, the repealing act reenacting substantially the former law, and not increasing the punishment of the accused, the right still exists to punish the accused for an offense of which they were convicted and sentenced before the passage of the later act. In other words, the effect of the decision construing the local law is to accomplish what it was clearly within the power of the legislative authority to do by an express act saving the right to proceed as to offenses already committed. The accused have not been punished for a crime which was not punishable when committed by the sentence imposed. . The Supreme Court has only held that the right to impose the penalty of the law under the Philippine Penal Code has not been taken away by the subsequent statute.' We are unable to see that due process of law, which is the right of a person accused of a crime, when prosecuted within a jurisdiction wherein the Constitution of the United States, or a statute embracing its provisions, is in force, has been denied.

The judgment of the Supreme Court of the Philippine Islands will be affirmed.

Affirmed.  