6 F.2d 209 | 9th Cir. | 1925
(after stating the facts as above). The statute under which the indictment was drawn (Act June 29, 1906, 34 Stat. 603, c. 3592, Comp. St. § 4379) provides that any person who knowingly procures naturalization in violation of the provisions of the act shall he punished as prescribed, and that upon conviction the court in which such conviction is had shall thereupon adjudge and declare that final order admitting such person to citizenship void. The statute also provides: “Jurisdiction is hereby conferred on the courts having jurisdiction of the trial of such offense to make such adjudication. Any person who knowingly aids, advises, or encourages any person not entitled thereto to apply for or to secure naturalization, or to file the preliminary papers declaring an intent to become a citizen of the United States, or who in any naturalization proceeding knowingly procures or gives false testimony as to any material fact, or who knowingly makes an affidavit false as to any material fact required to be proved in such proceeding, shall be fined. * 46 6 ”
Petitioner’s position is that the first count is fatally defective: (1) In that it does not allege that any proceeding of any kind was ever instituted by the filing of the affidavit, or that the sanie was ever used; and (2) that even if it had been filed and proceedings had been had thereon, such proceedings would not have constituted “naturalization proceedings” within the purview of section 23, above cited; and (3) that the averments of the affidavit charged to have been false were not material facts required to be proved in a “naturalization proceeding.” The grounds of objection to the second count are (1) that making and filing in the superior court of the state a petition to restore a purported record of that court in the form of a final order of naturalization would not and could not secure naturalization for Poco; and (2) that the count lacks allegation that any order restoring such purported record was ever made.
On the application for a warrant of removal based solely on the strength of an indictment found in a District Court of the United States for another district, the court in the district in which defendant has been arrested should be satisfied that upon the face of the indictment an offense against the United States is charged, or, as expressed by Judge Thayer in Stewart v. United States, 119 F. 89, 55 C. C. A. 641, on application for writ of habeas corpus, defendant may be discharged, provided it appears that the indictment is' “essentially and fundamentally” defective. On the other hand, where there is doubt of the sufficiency of the indictment as a pleading, inquiry on habeas corpus is not open. Hogan v. O’Neill, 255 U. S. 52, 41 S. Ct. 222, 65 L. Ed. 497.
There may be inartifieiality, uncertainty in averment, ambiguity, or defects in form, and still there may be a crime charged for which warrant of removal will be issued, and in a proceeding for removal to another jurisdiction the court will test the allegations of the indictment, not by way of a critical examination of the pleadings as such, but to ascertain whether, considering all the averments, the facts stated substantially charge a crime or offense against the United States and that it has been committed by the person arrested. Rodman v. Pothier, 264 U. S. 399, 44 S. Ct. 360, 68 L. Ed. 759; Gayon v. McCarthy, 252 U. S. 171, 40 S. Ct. 244, 64 L. Ed. 513; Stallings v. Splain, 253 U. S. 339, 344, 40 S. Ct. 537, 64 L. Ed. 940; Rowe v. Boyle (C. C. A.) 268 F. 809; Beehtold v. United States (C. C. A.) 276 F. 816; Crosland v. Dyson (C. C. A.) 280 F. 105.
Keeping the statute in mind, and putting the averments of the indictment in the second count in parallelism with the lan
In order to gain the benefits of the rights of citizenship, which in his affidavit he swore had been judicially granted by the alleged 1904 naturalization, Poco was obliged to revive that proceeding by again going into the superior court of the state, and setting forth, as he did, a prior order of naturalization and the facts upon which that order rested. To hold to this view is not to lose thought of section 4 of .the Act of June 29, 1906 (Comp. St. § 4352) wherein it is provided that an alien may be admitted to citizenship in the manner prescribed by certain subdivisions, “and not otherwise,” and that in the subdivisions referred to in the section there is no procedure whereby a lost record may be established or restored. Of course, in the instance of lost records of naturalization, the evidence to be adduced relates to the missing record and loss thereof, yet in acting upon the petition for restoration, and the averments thereof, the power of the court must be broad enough to ascertain whether as a fact there ever whs such a record or order of naturalization. Thus the petition for the order of restoration becomes a complementa! part of naturalization proceedings; - and in the immediate matter, as one of the material facts, Poco was required.to prove that in 1904 he had applied for naturalization, and that an order of naturalization was then and there made by the state court. But if as a fact in 1904 no such order was made, and no record of any such naturalization was entered, and Littleton, knowing such facts in 1919, then willfully aided and advised Poco in making the affidavit that Poco was entitled to naturalization and in obtaining an order of naturalization, when in truth he was not entitled thereto, then Littleton is substantially charged with an offense as defined in section 23, supra.
It seems to us that underlying appellant’s position there is a fallacy in the assumption that there can be no naturalization proceeding, or any step in a naturalization proceeding, as those terms are used in the relevant statute, unless the several matters sworn to and the several steps taken to secure an order of naturalization have a foundation that is veritable and legally sufficient. But in our opinion, if one in an affidavit, itself genuine, sets forth material matters as facts, and upon them prays for an order of naturalization, and upon such affidavit secures from a court of competent jurisdiction an order, in itself genuine, declaring him to be a citizen, such affidavit and such order are made and had in a naturalization proceeding, even though the affidavit is founded upon statements that may be proved tó be corruptly made and false, and the order made pursuant to the affidavit was «rested upon a showing that was false and untrue, and one who has knowingly and willfully advised and abetted the making of such an affidavit is criminally liable under the statute cited.
We therefore hold that the writ of habeas corpus was properly discharged.
Affirmed.