203 F. 155 | S.D.N.Y. | 1913
.The board of special inquiry has held, and its decision has been affirmed upon appeal to the Secretary of Commerce and Labor, that Gen. Castro shall be excluded because he has admitted the commission of a crime involving moral turpitude, viz., the murder of Gen. Paredes, and therefore falls within the excluded class of “persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude.”
“Tlie purport of all this was to tell the jury that, although the defendants must be proved guilty beyond a reasonable doubt, yet if the government had made out a pilma facie case against them, not one free from all doubt, but one which disclosed circumstances requiring explanation, and the defendants did not explain, the perplexing question of their guilt need not disturb the minds of the jurors. Their silence supplied in the presumptions of the law that full proof which should dispel all reasonable doubt. In other words, 1he court instructed the jury, in substance, that the government need only prove that the defendants were presumptively guilty, and the duty thereupon devolved upon them-to establish their innocence, and, if they did not, they were guilty beyond a reasonable doubt. We do- not think it at all necessary to go into any argument to show the error of this instruction. The error is palpablo on its statement. All the authorities condemn it. The case of Clifton v. United States, In 4 How. [242, 11 L. Ed. 957], cited by the court below, was divided upon a statute which cast the burden of proof upon the claimant in seizure cases after probable cause was shown for the prosecution, and therefore has no application. The Instruction sets at naught established principles, and justifies the criticism of counsel that it substantially withdrew from the defendants their constitutional right of trial by jury, and converted what at law was intended for their protection — the right to refuse to testify — into the machinery for their sure destruction.”
How very different was the board’s understanding of the law appears from the two findings which it made as follows:
“Tn the course of this examination this alien lias committed frequent perjury. lie has pretended to be ignorant of the matters concerning which a man of his intelligence and holding the position which he did undoubtedly possesses knowledge. Speaking of Louis Varela, who sent him frequent telegrams in regard to the capture and death of Gen. Antonio Paredes, he says, T do not know who he is.’ We consider him an unreliable witness. His testimony to the effect that no foreigners suffered losses of property through his actions during the years when lie was president we decline to believe. His refusal to reply to many questions put to him bearing upon his right to land convinces us that there exist damaging facts which he desires to conceal. Upon information received from official sources he was charged with responsibility for the unlawful killing of ramies, hut declined repeatedly to offer*158 any explanation or give tbe government any information in regard to tile latter’s death. He refused either to affirm or deny his guilt, even after he had been warned that unfavorable inferences would be drawn from such refusal, and that, he must take the consequences. Such refusal, together with his manner and demeanor when asked concerning these matters, constitute in our opinion an admission of the truth of the charge. He is therefore excluded on the ground that he has admitted the commission of a crime and felony involving moral turpitude. * * * The additional evidence strengthens materially and confirms the grounds upon which the board based its first excluding decision. The State Department now submits this telegram sent by Castro to Varela on February 33. 3907, upon hearing of the capture of Paredes: ‘You should give immediate orders to shoot Paredes and his officers. Advise me of receipt and fulfillment.’ The State Department also submits sworn testimony taken in court showing that these orders were complied with. Such testimony shows that Paredes was not killed in any attempt to escape, but that, on the contrary, he was by order of Castro killed in a coldblooded manner, without a pretense of a trial, and in violation of the rules of civilized warfare. Notwithstanding Castro was summoned before this hoard to hear and explain, if he could, the additional evidence, he refused in an insolent and defiant manner to listen to it or to answer. He stands before •this board applying for admission to the United States, and yet declines to give information bearing directly on his admissibility. Nor is his attitude consistent with that which an innocent person would assume when confronted with proof of a crime. PXis silence and behavior are under the circumstances an admission of guilt. He is again excluded as admitting the commission of a crime involving moral turpitude, namely, the murder of Gen. Paredes.”
Everything said about the alien’s frequent perjury and pretended ignorance of things he must have known and about his refusal to answer questions relating to the death of Gen. Paredes in the first finding and about the telegrams and diplomatic correspondence in the second is irrelevant. He was not bound to submit to examination upon the subject. It is not enough as the government contends that there should be some evidence to support the findings of the board. In this particular class of aliens there must be some evidence of the specific kind prescribed by the act.
The Secretary, as might naturally be expected, confined himself to the material question whether the proof established an admission within the meaning of the act. He relied upon United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917, which justified the board in drawing the conclusion that Chinamen were not born in the United States from the fact that they refused to answer questions upon the subject or stood absolutely mute. But the Chinese Immigration Acts put the burden .of proof expressly upon the Chinamen, and contain no restriction whatsoever as to the kind of proof upon which the immigration authorities are to act. He also cited United States v. Williams (D. C.) 175 Fed. 274, in which the court justified a deportation on the ground that there was some evidence that the alien was likely to become a public charge. This was a matter of proof generally and not of restricted proof as in the case here under consideration.
The prayer of the petition is granted, and the alien discharged.