128 F. 697 | 2d Cir. | 1904
Lead Opinion
• In the .case of Ark Eoo and Ark Toy the commissioner states his reason for rejecting the evidence of citizenship offered in their'behalf as follows:
“The two defendants were in court and the witness swears that the defendant Ark Foo is twenty-nine years of age. I was satisfied from said defendant’s appearance that he was certainly over forty years of age and therefore placed no reliance in the witness’' story.”
The district judge held that the commissioner’s determination in this regard should not be disturbed on appeal. We concur in this ruling. There is nothing in the record to show that the conclusion .as to Ark Foo’s age was incorrect. At the argument a photograph of Ark Foo purporting, to have been taken in December, 1903, was handed to the court. Even though we were permitted to consider this photograph it proves nothing that enables us to say that the commissioner was wrong in his conclusion that Ark Foo is over 40 years of age. To the commissioner is delegated the duty to determine, in the first instance, these questions of fact, and if it were perfectly apparent to him, as he says it was, that the appellants’ witness .had falsely stated the age of one of them the commissioner was justified in rejecting the entire testimony.
In the case of Hoo Fong and Lee Cheong Ging the commissioner declined to give weight to the testimony of the appellants’ witness,' called to establish their citizenship in the United States, because he was utterly unable to state any facts concerning the village of Martinez where it is alleged the appellants were born and where the witness testified he lived for 18 years. The only events which he recalled with certaintj'- during- this long period were the births of the appellants. In answer to the question,1 "What is your business ?” he answered, “Do odd jobs and loaf.” He was evidently a worthless individual and because of the inherently improbable nature of his story the commissioner disregarded lfis testimony. The district judge agreed with the commissioner and we are convinced that this court should not disturb these findings. ■ -
■ In the case of Jung Man an entirely different proposition is .presented. A witness was called who established without contradiction the citizenship of the appellant. The witness was not impeached and there w.as. nothing ,in bis testimony .to discredit it. It was a clear, straightforward statement. The .-commissioner makes no criticism of-the testimpny or of the witness. He does not suggest that the testimony is unsatisfactory or contradictory, or that there was any point requiring .explanation, . Neither he nor the district attorney requested the appellant to be sworn, as was done in Ex parte Sing (C. C.) 82 Fed. 22, and in the recent case of United States v. Leung Shue (D. C.) 126 Fed. 423. There can,-'therefore, be no escape from the conclusion
“They [the defendants] have proved their ease by a credible and credited witness, and there is neither law nor reason for requiring defendants to take the stand and submit .to examination in such a case upon pain of deportation.”
See, also, United States v. Hung Chang (D. C.) 126 Fed. 400, 405.
We think the commissioner should have discharged the appellant.
It follows that the decision in the case of Ark Foo and Ark Toy and in the case of Hoo Fong and Tee Cheong Ging- must be affirmed.
In the case of Jung Man the decision is reversed and the case is remanded to the District Court with instructions to discharge the defendant.
Dissenting Opinion
(dissenting). In the first two causes I concur in the result, but dissent from the methods by which conclusion is reached, and in the third cause dissent in toto. In each of these causes the majority of this court has examined, discussed, and analyzed the testimony given before the commissioner, and has reached a conclusion in accordance with its own impressions as to the credibility of the witnesses. I do not understand that this court has any such function to discharge. Certainly, without any opportunity to see the witness and the defendant, or to observe in what way the testimony is given, it would be very ill equipped to discharge such function. In Chin Bak Kan v. U. S., 186 U. S. 193, 22 Sup. Ct. 891, 46 L. Ed. 1121, the Chinese person had set úp a claim of citizenship, and a hearing at which witnesses were examined was had before a United States commissioner. That officer held that the Chinese person had “not made it appear to me [the commissioner] that he was a subject or citizen of any other country than China,” and adjudged that he be removed from'the United States. Appeal was taken to the judge of the District Court, who affirmed the judgment, and, the construction of a treaty being involved, appeal was taken direct to the Supreme Court. After indicating that it had power to dispose of the entire case, that court says:
“But as the jurisdiction of the commissioner is sustained, we are of opinion that we cannot properly re-examine the facts already determined by two judgments below. That is the general rule, and there is nothing to take this case out of its operation, and, on the contrary, the conclusion is a fortiori justified. The same reasoning in respect to the authority to exclude applies to the authority to expel, and the policy of the legislation in respects to exclusion and expulsion is opposed to numerous appeals. And we are not disposed to hold that, where a Chinese laborer has evaded the executive jurisdiction at the frontier and got into the country, he is therefore entitled to demand repeated hearings on the facts.”
The three causes were heard, each before a different commissioner. In each, one witness only was called — a Chinese person, who in each case testified that he was the uncle of the defendant. In each case the defendant, who was charged with being unlawfully within the United States, was informed of the charge against him, and,was advised that he would be permitted to make a statement with or without oath, or to refuse to make any statement or to answer any question