United States v. Gokey

• Decision Date: 21 May 1929
• Citation: 32 F.2d 793
• Parties: UNITED STATES ex rel. KING v. GOKEY et al.
• Court: U.S. District Court — Northern District of New York

32 F.2d 793 (1929)

UNITED STATES ex rel. KING v. GOKEY et al.

District Court, N. D. New York.

May 21, 1929.

L. M. Kellas, of Malone, N. Y., for relator.

O. D. Burden, U. S. Atty., of Syracuse, N. Y. (J. W. Genaway, Asst. U. S. Atty., of Malone, N. Y., of counsel), for defendants.

BRYANT, District Judge.

Howard James King, the relator, is a citizen and resident of the Dominion of Canada. He is a farmer, and resides about three miles northerly or nearly northerly of a store known locally as "Ouimet's." This store is located on the International Boundary, and is situated partly in Canada and partly in the United States. In other words, it is an ordinary "line store."

On September 13, 1928, just before dark, United States immigration officers went to this store. They left their car concealed some distance from the line and proceeded to their rendezvous on foot. There is not any question but that they were looking for an opportunity to apprehend King. This fact is not in any way disputed or questioned. They concealed themselves in close proximity to the store. In the early part of the evening, but after dark, King came to the place by auto and entered the store. There is not any claim that King, at the time of entry or while in the store, was committing or committed any illegal act. After about a half hour, King left the store. Immediately, or almost immediately, after coming through the door, he was seized by United States immigration officers, and after a sharp tussle was shackled and brought to the United States immigration office at Malone, N. Y., a distance of about 15 miles, where he was detained overnight. The next day, September 14th, he was taken to the office of the United States commissioner.

There a United States immigration inspector filed complaint, charging that on September 11th, at or near the town of Chateaugay, Franklin county, in said district, the said King did commit the crime of violation of section 8 of the Act of February 5, 1917, of the Revised Statutes of the United States (evidently the Commissioner's reference to the Revised Statutes of the United States was an inadvertence; the Act of February 5, 1917, referred to, is incorporated in the United States Code as section 144 of title 8, "Aliens and Citizenship"), by willfully, knowingly, wrongfully, and unlawfully, by himself and through another, attempting to bring into the United States, and bringing into the United States, an alien, to wit, Shaye Wittelsohn, a citizen of Russia of Hebrew race, not admitted into the United States, and not possessing a visa or other documents entitling him to enter. The offense charged is a misdemeanor. It is so defined by statute. The complaint does not contain any facts, except as above stated. No claim is made that any of the statements contained in the complaint were personally known by the officer. The records of the commissioner show that a warrant was issued and King arrested by a deputy United States marshal and arraigned before the commissioner. King was not represented by counsel. The records of the commissioner show that upon arraignment King waived examination and was held to answer to the District Court, and bail was fixed at $10,000. In default of bail, King was committed to the Franklin county jail.

Thereafter, and on October 1, 1928, King petitioned for a writ of habeas corpus, which was allowed. Return was duly made, and traverse to the return filed. King was released on bail pending hearing and decision. After the issuance of the writ, and prior to the hearing had on the issues, an indictment against the said King was presented in the District Court. He has not been apprehended or arraigned on the indictment, and is not held thereunder.

The relator bases his claim of illegal arrest and detention upon three grounds, briefly characterized as follows:

(1) That he is a citizen and resident of the...