United States v. Juen, 128 F. 522

128 F. 522 | D. Mont. | 1904

KNOWLES, District Judge.

Appeal from an order of deportation made by Edward C. Russel, United States Commissioner. Lbuie Juen was arrested upon a warrant charging him with being un-ikwfully within the United States, in violation of the acts of Congress excluding Chinese persons. At the time of his arrest, Louie Juen was engaged as a laborer. He claims, however, that he was a merchant, residing at Helena, Mont., at the time of the passage of the Geary act of May 5,. 1892, c. 60, 27 Stat. 25 [U. S. Comp. St. 1901, 1319], and during the time provided for the registration of Chinese ihborers under that act. The question presented is as -to whether said Juen was a merchant at that time, and engaged in that business. Capf. E. R. Tandy testified that he was a farmer and engaged in a inining enterprise from .1889 or 1890 to 1895, and that during that fretiod he employed Chinese laborers, and during that time he was frequently at a Chinese store situated in the upper part of Helena, Mont., looking for laborers, and there saw Juen, who seemed to be. occupied in conducting the business of said store. Gen. Charles D. Curtis testified that he had frequently seen Juen in' the 'store testified to by Capt. Tandy. .While it was evident from the testimony of Juen and others that Gen. Curtis was mistaken as to the time he saw the appellant in this store, still I do not think this destroys his evidence entirely. He might have been mistaken as to the dates when he saw him, and yet be correct as to the fact that he did see him. Witnesses are more likely to be incorrect as to dates than ány other part of their evidence. There were, however, some thre* Chinese witnesses who testified that from about 1889 to 1903 said Juen did conduct business as a merchant in said Helena in the building named by Tandy and Curtis. One of these testified that, when Juen came to Helena to enter into this mercantile business, he borrowed $300 of him, which sum, added to what he then had, amounted to $],ooo; that he'had two partners, who each put into said business $1,000; and that’this firm carried on business as merchants in Helena from 1889 to 1903— about 13 years in all. One of these witnesses was known as “Chinese Charlie,” who had lived in Helena for over 30 years, and was a respectable Chinese merchant himself. I can see no reason for disbelieving this witness. If his evidence can be considered by me, I am satisfied that during the time stated said Juen was a merchant, as he claimed in his own evidence. It was contended that the fact that he was a merchant during the time of registration under the Geary act could not be established by Chinese evidence. I find that this has not been a universal rule. In the case of United States v. Sing Lee (D. C.) 71 Fed. 680, Judge Bellinger says: “lie swears and proves by the testimony, of a number of Chinese witnesses that he is a merchant doing business in San Francisco.” Upon this evidence he held that the Chinaman in the action was a merchant. In the case of Quong Sue v. United States, 116 Fed. 316, 54 C, C. A. 652, the Circuit Court of Appeals for the Ninth Circuit says: “This court has repeatedly held under this and other similar provisions in other of the Chinese exclusion acts that the court below must decide for itself whether the evidence is satisfactory or not.” From this evidence, I hold that it satisfactorily appears said Juen was a merchant in Helena, Mont., from 1889 to 1903. The period during which he-could have registered as a Chinese laborer was a part of this period,

The question then arises as'to whether, having become a laborer during the year 1903, the appellant falls within the terms of the act. In the case of In re Chin Ark Wing (D. C.) 115 Fed. 412, it was held that under this state of facts he could not be deported. To the same effect is United States v. Sing Lee, above cited. He was a merchant during the time of the registration authorized by said Geary act, and hence could not register as a laborer. See cases last above cited.

It is therefore ordered that the order of the commissioner, Edward C. Russel, that Louie Juen be deported from the United States to China, be, and the same is hereby, set aside and reversed, and that the said Louie Juen be discharged from custody by the United States marshal.