118 F. 442 (N.D.N.Y. 1902), United States v. Lee Huen

Citation:118 F. 442
Party Name:UNITED STATES v. LEE HUEN, and fourteen other cases.
Case Date:October 06, 1902
Court:United States District Courts, 2nd Circuit, Northern District of New York

Page 442

118 F. 442 (N.D.N.Y. 1902)



LEE HUEN, and fourteen other cases.

United States District Court, N.D. New York.

October 6, 1902

Geo. B. Curtiss, U.S. Atty., and H. E. Owen, Asst. U.S. Atty.

Jas. F. Akin, for defendants Lee Huen, Fong Ham, Yee Yim, So Ho Lung, Wong Hum, and Wong Ching.

R. M. Moore, for defendants Chan Hin, Yet Sang, Fong John, Soo Hoo We, Chong Jack, Ah Wing, and Bak Hen.

B. W. Berry (R. M. Moore, of counsel), for defendants Wong On, Chin Yuen, Chin How, and Chin Tung.

J. B. Riley, for defendants Jung Lee, Lee Gung, Yee Ark Tai, Woo Fun, Lin Park, and Lee Choy.

John B. Riley (R. M. Moore, of counsel), for defendants Yee Min and Chin Rock Ting.

J. H. Booth, for defendant Fook Chung.

Page 443

United States v. Lee Huen, alias Ui Lee Huen.

This case presents the questions: (1) Was the evidence given by the defendant, who had the burden of proof, sufficient to demand a judgment that he was born in the United States? And if so, (2) was the evidence given on the part of the United States sufficient to overcome that presented by the defendant? And (3) on the whole evidence was a case made establishing the defendant's right to be and remain in the United States? The defendant admitted that he is a Chinese person, and not a member of the exempt classes; that he came into the United States from the dominion of Canada on or about July 21, 1902, and was apprehended as stated in the complaint and warrant. The defendant was not sworn, and there is no evidence showing the point of his entrance, or the circumstances attending it. The defendant called Ui Jee, a Chinese person, and the United States called Tow Dong, a Chinese person. These were the only witnesses sworn, and both gave their evidence through an interpreter. Thirty days intervened between the examination of Ui Jee and that of Tow Dong. The substance of the testimony of Ui Jee is: That he is 57 years old. Has been in the United States 28 years. Came from China with his brother and wife, and landed at San Francisco. Went thence in 3 or 4 days to Colfax. That this defendant was born there to his brother and wife. That witness remained at Colfax 18 years, and then, with his said brother and wife and this defendant, returned to China, where witness remained about a year, when he came again to the United States, and now resides on Park avenue, New York. Says Colfax had a Chinese population of several hundred, and he cooked for Wing Ling, and that his brother was bookkeeper for same man. Has never seen his brother since leaving Colfax. Does not know whether he is living or dead. Sister-in-law never writes him. Was surprised to find this defendant in the United States. Found it out by a letter from him written from the jail at Malone and sent to Hom Mon Kip, who lives in laundry with witness, and who has been known to him a year. Says Hom Mon Kip delivered defendant's letter, but it was not produced. No explanation is given why the defendant wrote Hom Mon Kip instead of his uncle, the witness, or how defendant came to know him or of him. This person was not called as a witness. This completes the defendant's case. This witness was not impeached, and there is nothing against his character. His appearance and manner of testifying were good, so far as appears on the record. It does not appear that he hesitated or showed bias or interest, except that of relationship. He gives none of the particulars or circumstances attending the alleged birth of the defendant in the United States, nor was he questioned on this subject. The government then called Tow Dong, who, according to his testimony, lives at 16 Pell street, New York, and has been in the United States 28

Page 444

years, and is 42 years of age. Landed at San Francisco, Cal., remained 3 or 4 days, and went thence to Colfax, where he remained 18 years, cooking and doing odd jobs. Says population of Colfax was five or six hundred white people and a few Chinese; that he knew the witness Ui Jee in China, who is an uncle of his by marriage; that they came to the United States together on same boat; that Ui Jee was married before he came to the United States, but his wife did not come over with him, and neither witness had any relatives on the boat that brought them over; that Ui Jee had no brother who came with them. Says he and Ui Jee went to Colfax together, and came from there to New York together; that Ui Jee had no brother in Colfax, and has never been back to China. He gives particulars of their residence in China which are not contradicted. He was subjected to a rigorous cross-examination, but nothing was developed affecting his general character, and from the record, nothing can be said against his appearance and manner of testifying. In some collateral matters he did show lapse or want of memory, and this somewhat weakens his testimony. The testimony of Ui Jee is weak and unsatisfactory, in that it does not give any of the circumstances attending the birth of the defendant. Was the witness present in the same house, or, if not, where was he? Did a physician or midwife attend, and if so, who? He is squarely contradicted by Tow Dong on the material points of the case, either directly or indirectly. If the brother and wife of Ui Jee did not come over as stated, then their son, the defendant, was not born in the United States at the time and place mentioned, and no evidence of his birth in this country has been presented. If Ui Jee has not been back to China since he came over, 28 years ago, he did not see the defendant in China. The discussion of the legal principles controlling this and other cases will be reserved until the facts of such cases have been stated.

United States v. Chan Hin, alias Chin Hen.

The question in this case is whether or not the defendant's name is Chin Hen, and he is the partner of that name in the Chinese mercantile firm of Sun Kwong On & Co., doing business at 33 Mott street, New York City. The defendant is a Chinese person, and not claimed to be a citizen of the United States. It is claimed that he is a merchant and a member of the firm named, and not a Chinese laborer, and hence entitled to be and remain in this country. Two or three witnesses state more or less positively that they know Chin Hen, have seen him working with the firm at its place of business, 33 Mott street, city of New York, and that he was recognized as a member of that firm. They claim to identify this defendant as that man. Other witnesses, with equal, if not greater, positiveness, assert that they know the defendant, and identify him. One says he knew him in China, and knows him here,-- pointed him out in court; that his name is Moy Pin Kong, and that he is a son of Moy Nai Pok, well known to him; that defendant went by that name (Moy Pin Kong) in China; that defendant stated to him a few months since, prior to the commencement of this proceeding, at Malone, that he was ordered deported, and must go back to China. The evidence shows that when a Chinaman marries he changes his name, taking that of the wife, but does not change his surname. No attempt was made to explain when or why defendant changed his name, if he ever did. Another witness says defendant's name is Moy Bing Keong, and his father's name is Moy Nai Pok, and that he knew him (defendant) in Worcester, Mass., where he was a laborer in a laundry, and also knew him in Boston. The defendant was not sworn. If the defendant is in fact Chin Hen, member of the firm mentioned, the fact was susceptible of overwhelming proof by witnesses living and doing business in the city of New York, and ample time was given for the production of such witnesses. The difference in the spelling of defendant's alleged name, as given by the witnesses mentioned, is not material. Such differences are not at all unusual. The evidence given by the witnesses who claimed to identify the defendant as Chin Hen, member of the mercantile firm, is not strong or necessarily convincing. Two, at least, showed an interest sufficient to seriously impair their credibility as witnesses in this case. It is not at all improbable, and the evidence will justify the conclusion, that

Page 445

this so-called Chin Hen, the defendant Moy Pin Kong, or Moy Bing Keong, is not a Chinese merchant, or the Chinese merchant Chin Hen, if there be one, but a Chinese laborer working at the laundry business, or as a helper in any business wherever he goes, and that he passes himself off, and is passed off by his countrymen, as a member of the firm, for the purpose of keeping him in the country. It may be that he was in the store at Mott street, working at packing goods, etc., as mentioned by his witnesses; but if he is Chin Hen, the merchant, and a member of that firm, why was he in Malone, as described, confessing his judgment of deportation; why in Worcester, working as a laundryman; why in China with another family name; and, finally, why was not an effort made to contradict or discredit this testimony? Was not a question of fact, on contradictory and conflicting evidence, fairly presented? Can it be said the finding of the commissioner was against the weight of evidence? Was not the determination of the credibility of those witnesses for the commissioner? Is there anything that suggests he acted capriciously or arbitrarily, or was swayed by prejudice?

United States v. Fong Ham, alias Ho Fong Sing, and Yee Yim, alias Ho Yee Duck.

It was conceded that the defendants are Chinese persons, not members of the exempt class, and that they came into the United States from the dominion of Canada, as charged in the complaints and warrants. The only question presented is the sufficiency of the evidence to satisfy the commissioner that the defendants, who claim to be brothers, were born in the United States. Only one witness, a Chinese...

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