Mr. Justice Holmes, with whom concurred Mr. Justice White and Mr. Justice McKenna, dissenting:
I regret that I am unable to agree with the decision of the majority of the court. The case is of great importance, not only in its immediate bearing upon the administration of justice in the Philippines, but, since the words used in the act of Congress are also in the Constitution, even more because the decision necessarily will carry with it an interpretation of the latter instrument. If, as is possible, the constitutional prohibition should be extended to misdemeanors (Ex parte Lange, 18 Wall. 163, 173, 21 L. ed. 872, 877), we shall have fastened upon the country a doctrine covering the whole criminal law, which, it seems to me, will have serious and evil consequences. At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny. But I do not stop to consider or to state the consequences in detail, as such considerations are not supposed to be entertained by judges, except as inclining them to one of two interpretations, or as a tacit last resort in case of doubt. It is more pertinent to observe that it seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy, from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case. It has been decided by this court that he may be tried a second time, even for his life, if the jury disagree (United States v. Perez, 9 Wheat. 579, 6 L. ed. 165; see Simmons v. United States, 142 U.S. 148, 35 L. ed. 968, 12 Sup. Ct. Rep. 171; Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617; Thompson v. United States 155 U.S. 271, 39 L. ed. 146, 15 Sup. Ct. Rep. 73), or, notwithstanding their agreement and verdict, if the verdict is set aside on the prisoner's exceptions for error in the trial. Hopt v. Utah, 104 U.S. 631, 635, 26 L. ed. 873, 874, 110 U.S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 114 U.S. 488, 492, 29 L. ed. 186, 185, 5 Sup. Ct. Rep. 972, 120 U.S. 430, 442, 30 L. ed. 708, 712, 7 Sup. Ct. Rep. 614; United States v. Ball, 163 U.S. 662, 672, 41 L. ed. 300, 303, 16 Sup. Ct. Rep. 1192. He even may be tried on a new indictment if the judgment on the first is arrested upon motion. Ex parte Lange, 18 Wall. 163, 174, 21 L. ed. 872, 878; 1 Bishop, Crim. Law, 5th ed. § 998. I may refer further to the opinions of Kent and Curtis, in People v. Olcott, 2 Johns. Cas. 301; 2 Day, 507, note; United States v. Morris, 1 Curt. C. C. 23, Fed. Cas. No. 15,815, and to the well-reasoned decision in State v. Lee, 65 Conn. 265, 27 L. R. A. 498, 48 Am. St. Rep. 202, 30 Atl. 1110.
If a statute should give the right to take exceptions to the government, I believe it would be impossible to maintain that the prisoner would be protected by the Constitution from being tried again. He no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm. It cannot matter that the prisoner procures the second trial. In a capital case, like Hopt v. Utah, a man cannot waive, and certainly will not be taken to waive without meaning it, fundamental constitutional rights. Thomspon v. Utah, 170 U.S. 343, 353, 354, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. Usually no such waiver is expressed or thought of. Moreover, it cannot be imagined that the law would deny to a prisoner the correction of a fatal error unless he should waive other rights so important as to be saved by an express clause in the Constitution of the United States.