Moy Wing Sun v. Prentis

• Decision Date: 18 April 1916
• Docket Number: 2273.
• Citation: 234 F. 24
• Parties: MOY WING SUN v. PRENTIS, Immigration Inspector.
• Court: U.S. Court of Appeals — Seventh Circuit

234 F. 24

MOY WING SUN v. PRENTIS, Immigration Inspector.

No. 2273.

United States Court of Appeals, Seventh Circuit.

April 18, 1916

Frank T. Milchrist, of Chicago, Ill., for appellant.

Chas F. Clyne and Benjamin Epstein, both of Chicago, Ill., for appellee.

Before BAKER, KOHLSAAT, and ALSCHULER, Circuit Judges.

ALSCHULER Circuit Judge.

This appeal brings for review a proceeding by habeas corpus whereby the petitioner, a Chinese, ineffectually sought discharge from custody under a warrant of deportation.

The original warrant of arrest, dated December 8, 1914, was signed 'Louis F. Post, Assistant Secretary of Labor,' and recited that petitioner landed at an unknown port on or about July 10, 1913, and was subject to be taken into custody and returned under section 21 of the Immigration Act of 1907 and was subject to deportation under the provisions of section 6 of the Chinese Exclusion Act, being a Chinese laborer not in possession of a certificate of residence. The warrant of deportation contained like recitals.

It is contended that petitioner should be discharged because the original warrant was signed 'Louis F. Post, Assistant Secretary of Labor,' and not by the Secretary of Labor. The writ of habeas corpus was sued out after the hearing and the issuing of the warrant of deportation. Objection to the original warrant comes too late. As was said by the Supreme Court in Ekiu v. United States, 142 U.S. 651, 662 12 Sup.Ct. 336, 339 (35 L.Ed. 1146):

'A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Ex parte Bollman & Swartwout, 4 Cranch, 75, 114, 125 (2 L.Ed. 554); Coleman v. Tennessee, 97 U.S. 509, 519 (24 L.Ed. 1118); United States v. McBratney, 104 U.S. 621, 624 (26 L.Ed. 869); Kelley v. Thomas, 15 Gray (Mass.) 192; The King v. Marks, 3 East, 157; Shuttleworth's Case, 9 Q.B. 651.'

It is next objected that certain letters used against appellant at the hearing were taken in violation of the constitutional provision against unlawful search and seizure.

Petitioner denied knowledge of the letters, and denied that he had a wife (the only letters of any possible relevancy, purporting to be written by a wife in China to her husband here). From the uncontradicted testimony of government's witnesses Kan.and Brekke, who took the letters, they were not in petitioner's possession at all. It appears they took a bunch of letters from a rack in the laundry where petitioner and others were employed, and with the consent of the proprietor of the laundry took away some of these letters and returned the balance to the proprietor. Since petitioner himself disclaims the letters, and as they were not in fact in his possession, nor taken from him, his constitutional rights were not in any event thereby invaded.

The Secretary of Labor found that petitioner entered the United States on or about July 10, 1913. Is there evidence to warrant this finding? Petitioner claims he was born and has always lived in the United States; that he came to Chicago between three and four years prior to his arrest, and lived there ever since. An uncle and another Chinese testified in corroboration of this claim. Five white witnesses connected with a Sunday school in Chicago testified to petitioner's attendance at the Sunday school since about the middle of 1912, but that they knew of him for a considerable period-- perhaps six months-- before that time. Aside from the letters, nothing appears in the record to show a different state of facts.

The two letters purport to be written to Dong Shok (which petitioner testified was his school name), and the writer of them terms him 'husband.' One is dated April 2, 1914, and refers to the fact of their having been parted for a year past. The other, dated September 25, 1912, refers to his going from Canada to Chicago, but it does not appear how the writer of the letter got information of that fact. There is no evidence that petitioner departed the United States between these two dates. Petitioner testified without contradiction that another man known as Dong Shok also worked at the same laundry. But for anything to the contrary in the letter of September 25, 1912, the person therein referred to as husband may have entered the United States indefinitely prior to its date; and so, conceding the admissibility of the letters, they alone do not warrant the finding that petitioner entered on or about July 10, 1913, nor indeed at any time within three years before his arrest.

But in the absence of proof that petitioner replied to these letters, or in some way recognized them, or acted in pursuance of them, they afforded no competent evidence against him. In Razor v. Razor, 149 Ill. 621, 36 N.E. 963, it was said:

'This letter, if addressed to the wife and found in her possession, would not be evidence against her unless the contents had been adopted, or sanctioned by some reply or statement or act done on her part, shown by proof aliunde the letter itself.'

The same rule was reaffirmed by that court in Crumbaugh v Owen, 238 Ill. 497, 87 N.E. 312. In ...