Gong Nom Wood v. United States, 191 F. 830

Gong Nom Wood v. United States

191 F. 830 | 2d Cir. | 1911

WARD, Circuit Judge.

[1] The appellant, a Chinese laborer, held by the United States commissioner and District Court not to be entitled to remain in the United States, appeals from an oisder of deportation to China. The record affords ground for their conclusion. Independently of this, we should not feel disposed to re-examine facts found by two tribunals below. The general rule not to do so is laid down by the Supreme Court in Chin Bak Kan v. United States, 186 U. S. 193, 201, 22 Sup. Ct. 891, 46 L. Ed. 1121.

[2] The error principally urged is that the commissioner erred in excluding the testimony of Dr. Thom. The purpose was to show that the appellant was mentally deficient. Thereafter his counsel called him as a witness and showed that he did not comprehend the nature of an oath, and the commissioner declined to permit him to be sworn for that reason. At a subsequent examination, six weeks later, the *831United States offered in evidence a stenographic report of the appellant’s examination taken when he was arrested. This was proven by the Unitedl States inspector, the Chinese interpreter, and the stenographer. It gives no evidence of mental incompetency, and the appellant’s counsel did not object to it for that reason. His objection was as follows:

“Mr. Knapp: I offer that in evidence.

“Mr. Donegan: I object to it as incompetent, immaterial, and irrelevant, and for the further reason that the defendant was under arrest at the time this examination was made. It was not a judicial proceeding.

“The Commissioner: 1 think it ought to be allowed to go in for what it is worth, subject to any objection that may be taken hereafter, and subject to a motion to strike out.

“Said paper is received in evidence and marked Government Exhibit 1.”

If counsel had relied upon the objection that the appellant was mentally deficient and had offered to show it, there can be little doubt the commissioner would have permitted him to do so.

The order of deportation is affirmed.