Ex parte Koerner

• Decision Date: 15 December 1909
• Docket Number: 1,425.
• Citation: 176 F. 478
• Parties: Ex parte KOERNER.
• Court: United States Circuit Court, District of Washington

176 F. 478

Ex parte KOERNER.

No. 1,425.

United States Circuit Court, D. Washington, Eastern Division.

December 15, 1909

Munter & Lovejoy, for petitioner.

A. G Avery, U.S. Atty.

WHITSON District Judge.

The petitioner seeks release by writ of habeas corpus from imprisonment in the Spokane county jail. He is detained for deportation upon a warrant issued on November 9, 1909, by the Acting Secretary of Commerce and Labor under the act of February 20, 1907 (34 Stat. 898). The Chinese and immigrant inspector, after a full and fair hearing, reported his proceedings to the Secretary, before whom the matter may be considered as still pending.

The documents upon which the warrant was issued, as disclosed by the petition and admitted by the return, show that the petitioner entered the country on the 12th day of April 1909, and was thereafter convicted of the crime of embezzlement in Austria, the country from which he came, on the 8th day of October, 1909. The clause of the statute under which the right to deport is claimed appears in section 2 of the act above noted, and reads:

' * * * Persons who have been convicted of, or admit having been convicted of, a felony or other crime or misdemeanor involving moral turpitude. * * * '

The petitioner was sentenced to imprisonment in the penitentiary, and, indulging the presumption that the law of the foreign jurisdiction is the same as that of this country, he was guilty of the commission of a felony and of a crime involving moral turpitude; but it affirmatively appears that he was convicted after he left Austria, and, it not appearing that he has admitted the commission of the offense, he is not brought within the statute. While the courts are bound by findings duly made by the executive branch in matters of this kind (United States v. Ju Toy, 198 U.S. 253, 25 Sup.Ct. 644, 49 L.Ed. 1040; Pearson v. Williams, 202 U.S. 281, 26 Sup.Ct. 608, 50 L.Ed. 1029; Oceanic Navigation Company v. Stranahan, 214 U.S. 321, 29 Sup.Ct. 671, 53 L.Ed. 1013), they cannot properly refuse relief, where upon the admitted facts it appears as a matter of law that the person sought to be deported is not within the inhibition of the statute. Gonzales v. Williams, 192 U.S. 1, 15, 24 Sup.Ct. 171, 48 L.Ed. 317; Ex parte Watchorn (C.C.) 160 F. 1014.

This is the case presented here. Want of jurisdiction, and not an erroneous finding, is the state of the record. The fact that the matter is...