United States v. Hung Chang

• Decision Date: 01 December 1904
• Docket Number: 1,339.
• Citation: 134 F. 19
• Parties: UNITED STATES v. HUNG CHANG.
• Court: U.S. Court of Appeals — Sixth Circuit

134 F. 19

UNITED STATES v. HUNG CHANG.

No. 1,339.

United States Court of Appeals, Sixth Circuit.

December 1, 1904

John J Sullivan, U.S. Atty., and T. H. Garry, Asst. U.S. Atty.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

Hung Chang, appellee, was arrested under a warrant issued in pursuance of section 13, c. 1015, Act Sept. 13, 1888, 25 Stat. 479 (U.S. Comp. St. 1901, p. 1317), charged with being a Chinese person, or person of Chinese descent, found unlawfully in the United States, and, after a hearing before a commissioner of the United States for the Northern District of Ohio, was adjudged to be one not lawfully entitled to remain in the United States, and ordered deported. From this finding and order, made October 26, 1903, Hung Chang appealed 'to the District Court of the United States in and for the Northern District of Ohio, and of the judge of said court,' and, after a hearing, the order of the commissioner was reversed and Hung Chang directed to be discharged from custody. Thereupon the United States applied for a writ of error from this judgment, which the District Judge declined to allow, except to his action as a judge and not as a court. In this condition the case came before us upon the question as to whether the appeal under the act was to the District Judge sitting as a judge or as a court, and we held, following In re United States, Petitioner, 194 U.S. 194, 24 Sup.Ct. 629, 48 L.Ed. 931, that the appeal was to the District Court, and not to the judge thereof as an individual. 130 F. 439. In accordance with the suggestion in our opinion, the case went back, the proper entries were made, and it is now here on appeal and writ of error to obtain a review of the action of the District Court. The case brought here both by appeal and by writ of error is but one case and will be so considered. Hurst v Hollingsworth, 94 U.S. 111, 24 L.Ed. 31. In our opinion it is properly here by appeal. Ark Foo v. U.S., 128 F. 697, 63 C.C.A. 249; Tsoi Yii v. U.S. (C.C.A.) 129 F. 585.

The order of the commissioner was apparently based not only upon the oral testimony, but the appearance of Hung Chang himself the order, among other things, reciting:

'Whereas, an examination was thereupon had by me of said Hung Chang upon the said charge, from which examination, and from the evidence adduced before me, it appears to me that the said Hung Chang is by race, language, color, and dress a Chinese person, and a laborer by occupation,' etc.

In the hearing before the District Court, the government introduced three witnesses, the defendant none. Two were inspectors, the third an interpreter.

Thomas O'Neill, a Chinese inspector, testified he had been such about three months. He first met the defendant on a Nickel Plate train, at the station in Cleveland. Hung Chang was accompanied by six other Chinamen. The witness asked him in Chinese for his certificate, which he did not produce. In reply to questions he said he came from Vancouver, and then from Buffalo, and that lie came over in a boat. At that time (as when in court) he had his hair done up in a queue, braided, and wound around the top of his head. His hair was black; the color of his skin yellow. Failing to produce a certificate, Hung Chang was placed under arrest, and subsequently made a detailed statement to the witness, through the government interpreter, which was testified to by the latter. The witness testified that for three months his official work had been with Chinese persons; that some years before, when employed in the Boston navy yard, he had for several years been in the habit of visiting friends, some 15 or 20, among the Chinese residents of that city. He stated that from association and observation he had made a practical study of the racial characteristics of the Chinese, and he was prepared to testify that Hung Change was a Chinese person; but the court refused to permit it, because he admitted he had not made a study in the books of the science of ethnology.

Frank Pierce, the Chinese inspector in charge, was 43 years old, and had been a Chinese inspector since June, 1902. It had been his business closely to observe Chinamen, and he had made a study of their peculiarities. He testified that he had the means of knowing whether the defendant was a Chinaman, that he had examined him for the purpose of determining that question, and he was prepared to testify that he was a Chinaman; but the court would not permit it, because he admitted that his knowledge was practical, that he had made a study of racial distinctions in books.

Shere F. Moy, the Chinese interpreter, was 40 years old. He was born in China, in the Sun Ling district; lived there until he was 13, and then came to this country; lived here until 1883; spent the next two years in China, and has been back here ever since. The witnessed talked with Hung Chang in Chinese. He testified that Hung Chang used the dialect of the Sun Ling district, where witness was born and raised. Witness testified that he was able to distinguish a person of Chinese descent from one of any other nationality, and he was ready to testify that Hung Chang was a person of Chinese descent, but the court would not permit him to, because he admitted on cross-examination that if a Chinaman had his queue cut off and did not speak the Chinese language he might be mistaken for a Corean or a Japanese. Shere Moy further testified, under objection, that Hung Chang stated to O'Neill, the inspector, through him, that his name was Hung Chang; that he was born in China; that he came from Hong Kong, and landed at Vancouver; that he lived there seven months, then came to Toronto, where he lived over a year, and from there came surreptitiously, by boat, along with a lot of other Chinamen, to the United States, landing in a sandy place, from which they walked to a place where they took a train. He stated he was a laborer-- a laundryman. Afterwards, at the United States Attorney's office, in answer to questions, Hung Chang stated that he was a full-blooded Chinese, and that his parents and grandparents were Chinese. It did not appear that these statements were induced by any promise or threat. At the same time the defendant was not warned that they would be used against him in the trial. The court excluded them on the ground the case was a criminal one, and they were not made voluntarily.

Hung Chang was present in person, presenting every outward appearance of being a Chinaman. He had his own Chinese interpreter. After the court had excluded the testimony of the three witnesses mentioned, the government requested that Hung Chang take the stand, and, through his interpreter, put to him two questions: First, whether he was a Chinese person; and, second, what was the nationality of his father and mother. These questions were objected to by counsel for the defendant, and the objections were sustained, the court taking the view that the case was a criminal one, and that he could not and would not compel the defendant to be a witness against himself.

To all of these rulings the government excepted, and the broad questions for consideration are: First, the nature of the proceeding; second, the kind of evidence required; and, third, whether there was enough to demand the deportation of the defendant.

1. By the treaty with China of December 8, 1894 (28 Stat. 1210), the coming, except under certain conditions specified in the treaty, of Chinese laborers to the United States, was absolutely prohibited. Article 1. Registered Chinese laborers were to be permitted to return to the United States under certain conditions and within certain periods, but only upon the production of proper certificates. Article 2. The provisions of the treaty were not to affect the right then enjoyed of Chinese officials, teachers, students, merchants, or travelers, but not laborers, to come to the United States, but only upon the production of certificates from their government, viseed by the diplomatic or consular representatives of the United States at their ports of departure. Article 3. For the purpose of carrying out the policy, thus broadly indicated, of excluding from the United States all Chinese persons with few exceptions, and of imposing upon all Chinese persons arrested and charged with being unlawfully within the United States the burden of establishing their right to be and remain here, the Chinese exclusion acts provide, among other things, as follows:

'That any Chinese person or persons of Chinese descent found unlawfully in the United States or its territories may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge or commissioner of a United States court, or before any United States court, and when convicted upon a hearing and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came.'

'But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district. ' Section 13, c. 1015, Act Sept. 13, 1888, 25 Stat. 479 (U.S. Comp. St. 1901, p. 1317).

'That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States. ' Section 3, c. 60, Act May 5, 1892, 27 Stat. 25 (U.S. Comp. St. 1901, p. 1320).

Hung Chang was arrested and tried...