Lew Moy v. United States

• Decision Date: 05 October 1908
• Docket Number: 1,536.
• Citation: 164 F. 322
• Parties: LEW MOY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 322

LEW MOY v. UNITED STATES.

No. 1,536.

United States Court of Appeals, Ninth Circuit.

October 5, 1908

Henry C. & Oliver Dubble and George L. McKeeby, for plaintiff in error.

Oscar Lawler, U.S. Atty., and A. I. McCormick, Asst. U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The plaintiff in error was arrested in Los Angeles, Cal., upon a warrant issued by the United States commissioner, based upon a complaint charging the defendant with being unlawfully within the United States, contrary to the provisions of the Chinese restriction acts. It appears that upon the hearing before the commissioner the defendant was represented by counsel, who refused to offer any evidence in his behalf contending that the defendant was a native-born citizen, and that the burden of proof was upon the United States to show that the defendant was unlawfully in the United States. The commissioner found, upon examination before him, that the defendant was by race, language, color, and dress a Chinese person and a laborer by occupation; that he had failed to establish by affirmative proof to the satisfaction of the commissioner his lawful right to remain in the United States that he had not made it appear that he was a subject or citizen of any other country than China; and thereupon the commissioner found and adjudged that the defendant was unlawfully within the United States, and that he should be removed and deported from the United States. An appeal was taken to the United States District Court at Los Angeles. It appears from the minutes of the court that, after the denial by the court of a motion of the United States Attorney to dismiss the appeal, the case was heard de novo.

Upon this hearing the depositions of two Chinese witnesses for the defendant, taken before the United States commissioner in San Francisco, were read to the court. The District Court, after hearing this and other testimony, affirmed the findings order, and judgment of the commissioner, and ordered the deportation of the defendant. The case is brought to this court upon writ of error.

The counsel who appeared for the defendant in this court, being familiar with the practice and the decisions of the courts in these cases, conceded that the points of law and objections urged on behalf of the defendant before the commissioner and in the District Court, as well as the assignments of error on this application for review, were untenable. He, however contends that the judgment of the District Court should be reversed, and the defendant discharged, on the ground that the two Chinese witnesses whose depositions were read to the court testified that the defendant was born in San Francisco, and that this testimony stands uncontradicted. But this testimony does not appear in the bill of exceptions. The bill contains the evidence in the District Court offered by the United States, to the effect that the defendant was found at work in a hotel kitchen in Los Angeles; that he spoke Chinese, and but very little English; that he presented no certificate of...