55 F. 58 | S.D. Ala. | 1892
My opinion Is that fke act of September 13, 1888, because a law from and after the date of its approval, and iliac section 13 of iimi; act became effective from that date. Ban’s of ¿lie ad; were made i,o depend apon ¿be r&tiilcaüo». oí the peiicltog treaty relating to CMuese, and. as that ratification has nor taken, nhice, thorn is no field of opead ion for them. They are sections 2-4 and 15. The law extola, but there to nothing for It to operate on. But üie rest of Ike vet, including section 13, has a field of operation. It to not necessarily dependent upon the provisions oí either fliie first or fifteenth sec lions. Section 5 provides that from, ami nil tar the passage of the act no Chinese laborer sluill be permit-led, after having bit the Cniied Beater-. to rotiiru 1 hereto, except trader certain condl fckrau tb.ereinafi.er staled. Judge Hanford, of the district court of Washington, in his opinion In the case of U. S. v. Jim, 47 Fed. Rep. 431, has so clearly expressed his views on flu: subject, aiuji i« them .! so fully rouc/tra, that I adopt what lie there says as my opinion on the que-ntem now under considera,¿ion. Judge Hanford is sustained by Judge 'Wheeler, of the district coa; i; oí Vermont, and by -Judge Bwan, of ¿lie district court oí Michigan, In cases reported in 47 Fed. Rep. 433, (In re Mah Wong Gee,) and 878, (U. S. v. Chong Sam) and I have found no coutrary ruling.
But, besides tisis, if sec;Ion *3 of the act of CepioniLer 13. 1888, is not in force, then lite proceeding under which defendant hao ho®» tried and convicted is nuil and void, and, while the result would be a dismissal of the appeal, a balseas corpus would lie, and the defendant be discharged, '¡there is no authority elsewhere to be found in the Mamies for such a proceeding as that taken in this case. There is no oilier statu le tear, I have found that authorizes a warrant to
I will now briefly consider the merits of the case on the proof submitted. The effect of a conviction of the defendant is to deprive him of Ms liberty in this country, and he cannot be convicted and removed without its being shown that he is unlawfully here. If the evidence fails to establish beyond a reasonable doubt that he is unlawfully in the United States, then the judgment of the commissioner must be reversed, and the defendant he discharged. Objection is made to certain parts of witness Brodie’s testimony as illegal and inadmissible. The testimony objected to includes some hearsay, which, however, is not material, and a statement that the witness saw defendant’s name on a list of 56 Chinese at New Orleans in transit through from San Francisco to Cuba. The objection to the testimony about the list is well taken (1) because it is not shown who made the list; that it was an authorized list; that it was the list required by law to be made by the customs officials at San Francisco on the arrival of the Chinese there, or the list of the shipmaster re