United States v. Chin Ken

• Decision Date: 22 November 1910
• Parties: UNITED STATES v. CHIN KEN.
• Court: U.S. District Court — Northern District of New York

183 F. 332

UNITED STATES v. CHIN KEN.

United States District Court, N.D. New York.

November 22, 1910

Geo. B Curtiss, U.S. Atty.

Defendants pro se; one B. W. Berry claiming to represent and asking to appear for Chin Ken and Chin Kit.

RAY District Judge.

There was a separate complaint, warrant, and examination in each of these cases, and there will be a separate order and judgment in each.

These persons above named, and who give their names as Chin Ken Chin Kit, Toy Sing, and Yew Fung, respectively, were found loitering near the depot at Malone, Franklin county, N.Y., about 16 miles from the Canadian border, on the evening of November 10, 1910, without baggage or business, so far as can be ascertained, and thereupon arrested and taken to the Franklin county jail at Malone, and on the morning of the 12th were brought before me and complaints made in writing that they are Chinese persons, laborers, aliens, and found and being unlawfully in the United States in violation of the Chinese exclusion laws. Deportation is sought by the United States.

When brought before me, after issue and service of warrant, Mr. B. W. Berry, an attorney at Malone, appeared also, and, when the case of Chin Ken was called, claimed to appear for him. His right and authority to appear for Chin Ken was challenged by Hon. Geo. B. Curtiss, United States attorney for the Northern District of New York, who was present representing the United States. Mr. Berry said he was willing to be sworn and was sworn in the presence of the defendant Chin Ken, who gave no sign of recognition, and who on three different occasions has refused to claim Berry as his attorney or counsel, and who finally, November 21, 1910, states he does not want an attorney or lawyer now, but later. He speaks and understands English. Mr. Berry claims that he was in the jail the evening of the arrest of these four defendants to see another person, a Chinese person held on the charge of being unlawfully in the United States, and that these defendants came into the room, and that this fifth person asked this defendant if he wanted Berry to appear for him, and that defendant said 'Yes.' No interpreter was present, but Berry says this fifth person spoke English to that extent. Berry had been informed there were four more Chinese in the jail before they came into the room where Berry was. He says, in effect, he then telegraphed to New York the names of these four defendants, and told his partner, R. M. Moore, these defendants, giving their names, were arrested, and asking if he should defend them, and Moore answered 'Yes.' He says he did not ascertain the cause of their arrest or the charge against them, but assumed it was for being unlawfully in the United States. Mr. Moore is not an attorney of this court.

Mr Wallace, an experienced Chinese interpreter of good standing, was sworn as interpreter, and Chin Ken was examined as was Chin Kit, in the presence of Berry, and each asked if he had any lawyer or attorney; if he desired to send for one; told if he did to make it known; that he had a right to send for one or employ one; that he had a right to be represented by counsel, if he desired to be represented by counsel. Also, later if he had employed an attorney or lawyer, and was again informed of his right to be represented by an attorney and of his right to produce witnesses. He was also asked, in the presence of Mr. Berry, if he knew any one in the room, and if he had had any talk with any one in the room. To all questions except giving his name he refused to answer and stood mute. Proof was taken that he understood what was said. It finally appears that he can and does speak and understand the English language to quite an extent. It was perfectly evident the defendant did not know Berry, and I find as a fact that Berry had not been employed by the defendant, and was unknown to him. The same course was taken with Chin Kit in Berry's presence, and Chin Kit stood mute. Berry was not present at the examinations of Toy Sing and Yew Fung, having left the court. After the examination of the defendants, having explained to each the charge against him and his right to witnesses, counsel, etc., and taking evidence, the cases were held open to November 14th, and then to November 21st, to enable the defendants to produce witnesses, and obtain counsel if they desired so to do. No witnesses have been produced, and no counsel has opposed. Chin Ken speaks English, and can understand it. A further examination was held November 21, 1910, and Chin Ken said in the presence of all the defendants he wanted no lawyer now, by and by, and that he had not had a lawyer. They have written and sent letters and received letters. Proof was taken that the defendants are Chinese persons and laborers. The burden was then on them respectively to prove they are citizens of the United States or for some reason entitled to be and remain in the United States. Sections 2, 3, Act May 5, 1892, c. 60, 27 Stat. 25 (U.S. Comp. St. 1901, pp. 1319, 1320); Ah How v. United States, 193 U.S. 65, 76, 24 Sup.Ct. 357, 48 L.Ed. 619; In re Ching Jo (D.C.) 54 F. 334; United States v. Wong Dep Ken (D.C.) 57 F. 206; In re Li Sing, 86 F. 896, 30 C.C.A. 451; United States v. Lung Hong (D.C.) 105 F. 188; United States v. Chun Hoy, 111 F. 899, 50 C.C.A. 57; United States v. Sing Lee (D.C.) 125 F. 627; Lee Yue v. United States, 133 F. 45, 66 C.C.A. 178; Low Foon Yin v....