183 F. 332 | N.D.N.Y. | 1910
There was a separate complaint, warrant, and examination in each of these cases, and there will be a separate order and judgment in each.
These persons above named, and who give their names as Chin Ken, Chin Kit, Toy Sing, and Yew Fung, respectively, were found loitering near the depot at Malone, Franklin county, N. Y., about 16 miles from the Canadian border, on the evening of November 10, 1910, without baggage or business, so far as can be ascertained, and thereupon arrested and taken to the Franklin county jail at Malone, and on the morning of the 13th were brought before me and complaints made in writing that they are Chinese persons, laborers, aliens, and found and being unlawfully in the United States in violation of the Chinese exclusion laws. Deportation is sought by the United States.
When brought before me, after issue and service of warrant, Mr. B. W. Berry, an attorney at Malone, appeared also, and, when the case of Chin Ken was called, claimed to appear for him. His right and authority to appear for Chin Ken was challenged by Hon. Geo. B. Curtiss, United States attorney for the Northern District of New York, who was present representing the United States. Mr. Berry said he was willing to be sworn and was sworn in the presence of the defendant Chin Ken, who gave no sign of recognition, and who on three different occasions has refused to claim Berry as his attorney or counsel, and who finally, November 21, 1910, states he does not want an attorney or lawyer now, but later. He speaks and understands English. Mr. Berry claims that he was in the jail the evening of the arrest of these four defendants to see another person, a Chinese person held on the charge of being unlawfully in the United States, and that these defendants came into the room, and that this fifth person asked this defendant if he wanted Berry to appear for him, and that defendant said “Yes.” No interpreter was present, but Berry says this fifth person spoke English to that extent. Berry had been informed there were four more Chinese in the jail before they came into the room where Berry was. He says, in effect, he then telegraphed to New York the names of these four defendants, and told his partner, R. M. Moore, these defendants, giving their names, were arrested, and asking if .he should defend them, and Moore answered “Yes.” He says he did not ascertain the cause of their arrest or the charge against them, but assumed it was for being unlawfully in the United States. Mr. Moore is not an attorney of this court.
Mr. Wallace, an experienced Chinese interpreter of good standing, was sworn as interpreter, and Chin Ken was examined as was Chin Kit, in the presence of Berry, and each asked if he had any lawyer or attorney; if he desired to send for one; told if he did to make it known: that he had a right to send for one or employ one; that he had a right to be represented by counsel, if he desired to be represented by counsel. Also, later if he had employed an attorney or lawyer, and was again informed of his right to be represented by an attorney and of his right to produce witnesses. He was also asked, in the presence of Mr. Berry, if he
No rights áre gained by standing mute. United States v. Sing Tuck et al., 194 U. S. 161, 24 Sup. Ct. 621, 48 L. Ed. 917, where as here the defendant stood mute except in giving name. “They were offered a way to prove their alleged citizenship and to be set at large, which would be sufficient for most people who had a case and which would relieve the courts. If they saw fit to refuse that way, they properly were held down strictly to their technical rights,” said the court. Also:
“On the contrary, the parties were told that, if they could produce two witnesses who knew that they had the right to enter, their testimony would be taken and carefully considered, and various other attempts were made to induce the suggestion of any evidence to help establish the parties’ case, but they stood mute.”
Here the defendants have been given more than one opportunity and a week’s time to assert they had counsel or witnesses .or both, or
There will be an order or judgment of deportation to China in each case.