LAMAR, J., dissenting. 223 U.S. "SAN CARLOS, Sept. 20/07. Judge JocsoŃ, 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 and 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 right 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 223 U. S. LAMAR, J., dissenting. 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 sentenced 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 deVOL. CCXXIII-30 LAMAR, J., dissenting. 223 U.S. 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 not 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 223 U.S. LAMAR, J., dissenting. 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." Statement of the Case. 223 U.S. GAAR, SCOTT & COMPANY v. SHANNON. ERROR TO THE COURT OF CIVIL APPEALS FOR THE THIRD SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS. No. 88. Argued December 11, 1911.-Decided February 19, 1912. Where the judgment of the state court rests on a matter of general law strong enough to sustain the judgment, this court cannot consider the Federal question involved; even if it were actually considered by the state court and determined adversely to plaintiff in error. Hale v. Akers, 152 U. S. 554. Where a Federal question was properly presented and necessarily controls the determination of the case, this court has jurisdiction even if the decision is put by the state court upon some matter of local law. West Chicago R. R. Co. v. Chicago, 201 U. S. 506. Neither a statute imposing a tax, execution thereunder, nor mere demand for payment, constitutes duress; but where the statute contains self-operating provisions by which non-payment of the tax results in severe penalties and forfeiture of right to do business, payment by one within the class affected is not voluntary but compulsory. While a payment of the tax by one included in the class to which a statute applies in order to avoid penalties and forfeiture is compulsory, it is not so as to one not included in such class and payment thereof by such person is voluntary and not under duress. Where the state court decides that a corporation which claims that it only does an interstate business but paid a state tax levied only upon corporations doing an intrastate business made the payment not under duress, and the record shows that the question was fairly in the case, the judgment rests upon a ground of general law broad enough to sustain it. 52 Tex. Civ. App. 644, affirmed. In this suit against Shannon, Secretary of State for Texas, for the recovery of taxes paid under protest, the plaintiff, Gaar, Scott & Company, alleged that it is a corporation chartered by the laws of Indiana, in which State it has its principal place of business and where it manu |