99 F.2d 746 (9th Cir. 1938), 8751, Graham v. United States

Docket Nº:8751.
Citation:99 F.2d 746
Case Date:October 28, 1938
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 746

99 F.2d 746 (9th Cir. 1938)




No. 8751.

United States Court of Appeals, Ninth Circuit.

October 28, 1938

Page 747

A. L. Wirin and Lee Baylor Stanton, both of Los Angeles, Cal., for appellant.

Ben Harrison, U.S. Atty., and Francis C. Whelan, Asst. U.S. Atty., both of Los Angeles, Cal.

Before WILBUR and DENMAN, Circuit Judges, and ST. SURE, District judge.

WILBUR, Circuit Judge.

This is an appeal from a judgment arising out of proceedings criminal in their nature holding appellant guilty of contempt of court and sentencing him to six months imprisonment therefor. The proceedings were initiated by the United States attorney who, on December 11, 1937, filed an information for criminal contempt alleging therein that appellant was ordered by the District Court to appear before an inspector of the United States Immigration and Naturalization Service and to 'produce his birth certificate and his passports for entry into the United States and any other papers and documents he might have touching his citizenship and his birthplace and his emigration to and immigration into the

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United States of America,' and 'then and there to testify before said immigrant inspector and answer such questions as might be submitted to him touching his birthplace, his entry into the United States, his citizenship and his right to be and remain in the United States. ' It is alleged that appellant appeared at the time and place designated in the order but 'refused to answer any question whatever that was submitted to him by the said immigrant inspector. ' A copy of the reporter's transcript of proceedings before the immigrant inspector is attached to the information and shows the questions which were asked appellant and his refusal or failure to answer each of them.

The appellant entered a plea of not guilty and filed an answer entitled 'a plea in bar' alleging that the deportation proceedings pending before the Department of Labor against appellant are illegal and constitute a denial of due process of law; that the questions asked him by the immigrant inspector would, if answered, 'tend to incriminate him under an act of Congress approved May 22, 1918 (40 Stat. 559, and 40 Stat. 1829 (see 22 U.S.C.A. §§ 223, 224)), which makes it a felony for an alien to enter the United States without a permit so to do, in time of war; * * * and under the Criminal Syndicalism Law of the State of California (Stats. 1919, p. 281, Deering's General Laws of Cal. 1931, Act 8428) and the Sedition Law of the United States (50 U.S.C.A. §§ 33, 34; 18 U.S.C.A. § 6); * * * under acts of Congress approved March 4, 1929 (40 (45) Stat. 1551), and 8 U.S.C.A. § 180a, which in effect state that one ordered deported who has left the United States shall be considered to have been deported, and that the entry of an alien at an improper time or place eluding examination or inspection shall constitute a misdemeanor'; that the order of the court directing appellant to testify before the immigrant inspector was erroneously secured under the authority of 8 U.S.C.A. § 152, in that such statute applies only to exclusion cases and does not apply to deportation cases.

A general demurrer was filed to the answer or 'plea in bar' on January 10, 1938, and on January 13, 1938, the court sustained the demurrer, overruled the plea in bar, evidence was adduced and appellant was found in contempt of court and sentenced to six months in the county jail of Orange County...

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