Regan v. United States

• Citation: 183 F. 293
• Decision Date: 14 November 1910
• Docket Number: 14.
• Parties: REGAN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

183 F. 293

REGAN v. UNITED STATES.

No. 14.

United States Court of Appeals, Second Circuit.

November 14, 1910

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, plaintiff below. The action was to recover the sum of $1,000 by way of penalty for an alleged violation of sections 4, 5, Act Feb. 20, 1907, c. 1134, 34 Stat. 900 (U.S. comp. St. Supp. 1909, pp. 450, 451), such violation consisting, as it is charged, in soliciting assisting, and encouraging the importation of a contract laborer into this country. The alien, one Foreau, was a pastry cook who had been employed in the Carleton Hotel London, and who presented himself with, as he says a letter of introduction from one Neumann, the manager of that hotel to the defendant Regan, proprietor of the Knickerbocker Hotel in New York, who thereupon gave him employment. At the end of 50 days he was discharged. Foreau had never met Regan before the interview at which he presented the letter, and it is the theory of the government that Neumann was the agent of Regan to secure the pastry cook, and that in suggesting his going to the Knickerbocker, in writing the letter of introduction and in paying his passage-- all which Foreau testified that Neumann did-- Neumann was acting for Regan or on his procurement.

G. B Rosenheim and Max D. Steuer, for plaintiff in error.

Henry A. Wise, U.S. Atty. (W. L. Wemple, Asst. U.S. Atty., of counsel), for the United States.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts as above).

Defendant contends that there was not sufficient evidence to take the case to the jury, and that his motion to dismiss at the close of the testimony should have been granted. Neumann was not examined, and the defendant did not take the stand. The only witnesses were Foreau for the government and Mrs. Regan for the defendant. She had acted as interpreter at the interview, because Foreau did not speak English and Regan did not speak French. The evidence to support the government's contention is meager, but we do not find it necessary to discuss it in detail, since there are exceptions in the case which call for a reversal, and on a new trial the testimony may be somewhat different.

Section 12 of the act of February 20, 1907, provides that, upon the arrival of any alien by water at any port within the United States, it shall be the duty of the master of the vessel having said alien (i.e., an alien entering the United States) on board to deliver to the immigration officers at the port of arrival lists or manifests made at the time and place of embarkation of such alien on board such vessel, which shall, in answer to questions at the top of said list, state as to each alien the full name, age, and sex and also certain other particulars. Among these particulars required to be set forth in the manifest is the statement whether the alien has paid his own passage, or whether it has been paid by any other person, and, if so, by whom. These lists are to be verified under oath by the master of the vessel.

A manifest was prepared before embarkation, giving particulars as to Foreau. It may fairly be presumed that such manifest was delivered to the immigration officers, but the government did not produce it nor offer it in evidence.

It appears from Foreau's testimony that a blank form of manifest was obtained from the steamship company's agent, and that it was filled up by Neumann in his office at the Carleton Hotel, witness answering several questions which Neumann put to him when filling it up. For some reason proposed manifest was unsatisfactory to the steamship company, so a new one was prepared and signed when Neumann paid the passage money. Foreau kept the old form and produced it at the trial. When it was offered in evidence defendant's counsel objected, as follows:

'I object to it because it clearly contains a deduction here as to an important item in this transaction, the payment of the passage money, on the grounds that it is immaterial, incompetent, and irrelevant.'

The objection was overruled, exception reserved, and the paper admitted. The first part of this objection is not altogether clear, but counsel did specifically call attention to the part of the document which referred to payment of passage money, and objected that the evidence offered was incompetent. The eighteenth question called for a statement by whom passage was paid, and Mr. Neumann's written answer thereto was: 'Mr. Regan, Hotel Knickerbocker, New York.'

To admit this document was substantially to admit evidence that Neumann had made declarations to third parties, not in the presence of defendant, as to what defendant had done, which would clearly be incompetent. We must also conclude that the introduction of this piece of evidence was harmful to defendant. Indeed, since the only witness for the government was Foreau, it is highly probable that the jury found in this apparently corroborative statement by Neumann sufficient to enable them to reach the conclusion that defendant was guilty of the offense charged.

It may be noted that we are not now expressing any opinion as to whether the original manifest, sworn to by the master of the vessel and duly filed with officers of the government, could or could not be admitted in evidence, as a public document or on any other theory; that question may be decided when it is presented. The admission of the unused filled up blank form was error calling for reversal.

Exception was also reserved to the court's refusal to charge that, in order to warrant a recovery of the penalty, the evidence must satisfy the jury beyond a reasonable doubt that defendant was guilty of the offense charged. Since there is to be a new trial the question raised by that exception should be now decided.

The sections of the act of 1907, on which the action is founded, are as follows:

'Sec. 4. That it shall be a misdemeanor for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation or in any way assist or encourage the importation or migration of any contract laborer or contract laborers

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