291 F. 129 | D. Mont. | 1923
Adverting to the merits, the charge, on information and belief, is that defendant fraudulently procured the certificate, in that he then “did not intend to become a permanent resident of the United States.” The statute is “permanent citizen,” perhaps equivalent terms. See Luria v. U. S., 231 U. S. 9, 34 Sup. Ct. 10, 58 L. Ed. 101. The only evidence is a copy of the certificate of citizenship, and a narrative by plaintiff’s consul at Cape Town, certified by its Department of State, and presented by the district attorney, as follows:
“I, Charles J. Pisar, vice consul of the United States of America, at Cape Town, Union of South Africa, hereby certify that I am personally acquainted with Sidney Ernest Knight, who resides at Cape Town; that he stated under oath on May 26, 1917, when he registered as an American citizen at the American consulate general at Cape Town; that he was born in London on September 24, 1875; that he came to the United States in May, 1890; that he was' a naturalized American citizen, submitting his naturalization certificate, issued by the First judicial court at Helena, Montana, on November 5, 1900, in proof thereof; that he came to Cape Town on September 13, 1901, for the purpose of representing the Mercantile Agency, R. G. Dun & Company, of 290 Broadway, New York City, which firm he has constantly represented in South Africa since, and that he intended to return to the United States for permanent residence whenever Ms employers so desired.
*132 “I further certify that on October 25, 1920, Mr. Knight appeared at the American consulate general at Cape Town, bearing passport No. 32218/11 issued to him by the government of the Union of South Africa on October 19, 1920, with a request for a visa thereto to enable him to proceed to the United States in connection with the business of the firm he represents, and that such a visa was granted him by Vice Consul Charles W. Allen, to whom Mr. Knight was not personally known to be a citizen of the United States.
“I further certify that, answering an invitation to call at the American consulate general, Mr. Knight appeared on October 26, 1921, and upon being questioned concerning his citizenship, stated to me that he applied for a British passport in October, 1920, for specific reasons which he declined to divulge, that when he applied for said passport he was not required to take an oath of allegiance to the British crown, or to swear to the declaration made in applying for the passport; that he admitted that he has now lived for 20 years in South Africa, returning to the United States but once during this period, and that he did not know when he would return for permanent residence; that he had voted on several occasions at elections in South Africa, and that he has acquired interest in local community affairs, and intended to take an active part therein during his residence here.
“I further certify that Mr. Knight left the United States within less than one year after completing his naturalization as a citizen of the United States of America, and while he has been representing American interests in South Africa, he has failed to adhere to his oath of allegiance as an American citizen, and that his naturalization as an American citizen was fraudulently obtained, and should be revoked.
“I further certify that Mr. Knight refused to surrender his certificate of naturalization.
“Given under my hand and official seal at city of Cape Town, Union of South Africa, this 29th day of October, A. D. 1921.”
Section 15 provides that if any naturalized citizen, within 5 years after issuance of certificate, takes “permanent residence” abroad, “it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceed? ing to authorize the cancellation of his certificate of citizenship as fraudulent”; that consuls “shall from time to time, through the ‘Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship .and who have taken permanent residence” therein, “and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship.”
Other of the consul’s narrative, hearsay, conclusions, advice, etc., is without evidentiary competency and value, save to the extent it discloses the overzeal, if not irritation and prejudice, of an affronted man, and inspires more than usual caution in appraising trustworthiness in reporting more or less remote conversations with an accused and admissions imputed to him. If, however, the consul’s report of defendant’s declarations and admissions be taken at face value, it fails to prove the vital fact that alone may invoke the .presumption of defendant’s fraud in procuring the certificate. Even if the declarations and admissions of past acts, but of only present intent, suffice to prove that then presently defendant was a permanent resident in South Africa, they fall short of proving that such permanent residence began 12 to 17 years theretofore and within 5 years after certificate issued—the vital fact as aforesaid. The mere facts that, 11 months after certificate issued, the citizen in his employer’s business goes abroad, in it is detained 12 years, then avows his intent to return to the United States for permanent residence when his employer desired, and refuses to surrender his certificate of citizenship to one who officiously demands it, are not proof that the citizen by act and intent abandoned his domicile in the United States and acquired a - domicile abroad, all within 5 years after certificate issued. They are reasonably consistent with domicile in the United States until the time of the declarations, if not always, and by reason of them is no backward presumption otherwise.
A change of abode with present intent to return to the former abode upon the contemplated happening of an event in the indefinite future, as business dispatched, health recovered, employment ended, employer’s recall, is not a change of residence or domicile. If, however, a person removes to another place with present intent tó abide there indefinitely, and not merely until the contemplated happening of a contingency as aforesaid, he abandons his old residence or domicile in the place from which he removed, and acquires new residence or domicile in the place to which he removed, notwithstanding he may entertain a vague, floating intent or hope to some time return to the former place. The distinction and difference are that in legal contemplation the first case is a present intent to return and independent of future determination; whereas the second case is a mere present expectation or hope to return, and wholly dependent upon future state of mind. The latter,
Taken as a whole, the evidence fails to persuade the conscience of the chancellor that justice would be done by a decree against defendant, and so the,decree is for him.
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