Kush v. Davis

3 F.2d 273 | 7th Cir. | 1924

PAGE, Circuit Judge.

This appeal is to reverse an order of the District Court, dismissing a writ of habeas corpus, brought to test the sufficiency of a warrant for the deportation of appellant.

It is admitted that appellant is an alien, and that the literature found in his possession was of a kind prohibited by the statute.

It is urged for reversal that'the prohibited literature was obtained by the entry into appellant’s house of a government agent without a search warrant, and that therefore its taking and us.e. were. illegal; that there is nothing 'to show that appellant knew the contents of the literature; and that the deportation warrant is invalid because, in the body of the warrant, instead of stating one specific thing, all of the matters specified in the act are alleged dis-junctively, that.is, the warrant says “that he writes, publishes, or causes to be .written or published, or knowingly circulates, etc.”

The uncontradicted testimony of the government agent is that when he went to the alien’s house the door was open, that he saw a lot of literature upon the table and entered, and that he asked and ' was granted permission to look at the literature. There is no. evidence of any protest either against the entry or the'taking of the literature. No demand was ever made for its return, and no objection was made to ‘its introduction or use in evidence. The alien had been in this country nine years, and that he understood. what he was doing is quite evident. He had the literature for the purpose of distribution, for which he was compensated, and he had already distributed considerable ' of such literature. He had bought and paid for, and had in his possession, organization stamps' and stamps for dues in the Communistic party. In his room there were numerous books. On cross-examination by alien’s attorney, the .government’s agent was asked: “Was there anything about most of the other books that you would consider illegal? A. Well, he was pretty well posted himself. He told me Those books are legal and those books illegal.’ He knew the difference between the books himself.” " There was abundant evidence to justify the deportation.

It ■ appears from the record that' in such a proceeding blank forms to fit many conditions are used, and that .there was no effort to make the changes that would cause the blanks to fit the ease in hand. The Supreme Court has said In Bilokumsky v. Tod, 263 U. S. 149, 158, 44 S. Ct. 54, 57, 68 L. Ed. 221:

“If sufficient ground for his detention by the government is shown, he is not to be discharged' for defects in the original arrest or commitment” — citing Nishimura Ekiu v. U. S., 142 U. S. 651, 662, 12 S. Ct. 336, 35 L. Ed. 1146; Iasigi v. Van de Carr, 166 U. S. 391, 17 S. Ct. 595, 41 L. Ed. 1045; Stallings v. Splain, 253 U. S. 339, 343, 40 S. Ct. 537, 64 L. Ed. 940.

See, also, Antolish v. Paul, 283 F. (7th C. C. A.) 957.

The order o'f dismissal is affirmed.