United States v. Lew Loy
| Decision Date | 22 April 1918 |
| Docket Number | 8918. |
| Citation | 253 F. 784 |
| Parties | UNITED STATES v. LEW LOY. |
| Court | U.S. District Court — Northern District of Ohio |
F. B Kavanagh, Asst. U.S. Atty., of Cleveland, Ohio.
White Johnson, Cannon & Neff, of Cleveland, Ohio, for defendant.
This is an appeal from a judgment of deportation rendered by a United States commissioner on a former hearing. The commissioner's order was affirmed, and on appeal to the Circuit Court of Appeals this judgment of affirmance was reversed, and the case was remanded for a new trial. 242 F 405, . . . C.C.A. . . . . At this new trial additional evidence has been introduced. Upon consideration of all the evidence, I find the following facts:
Lew Loy is a Chinese person, and the son of Lew Fook Shing. The father, in October, 1910, when defendant entered the United States, was a merchant resident in the United States. He was then, and from October 6, 1907, had been, interested in and connected with a store at No. 1261 Broadway, Oakland, Cal which business was later removed to No. 527 Twelfth street, Oakland, Cal., and was there continued until a recent date. This appears from the testimony of defendant, his father, and R. J. Faneuf, superintendent of the United States post office at Oakland, Cal.
Defendant arrived at the port of San Francisco on the steamship Mongolia about October 15, 1910. He was not permitted to land until about a month later, during which time the United States immigration officers investigated his right to be admitted. Witnesses were brought forward, who, it must be held, established to the satisfaction of these officials the defendant's status as a minor son of Lew Fook Shing, and the latter's status as a Chinese merchant lawfully in the United States. He was thereupon permitted to enter, and a proper certificate was issued to him, bearing date of December 12, 1910. Attached to this certificate is a photograph plainly recognizable, notwithstanding the lapse of time, as the defendant. This certificate states defendant's age as being 20. On this hearing defendant's father testifies that his son was really only 19, as the age thus given is according to the Chinese rule of counting ages, which, it seems, treats a child as one year of age as soon as he is born, and two years of age at the next birthday of the Chinese emperor, even though that birthday should arrive one or two months after the birth of the child. I accept as true this statement, first, because the photograph attached to the certificate is obviously that of an immature youth; and, second, the father's testimony in my presence convinced me that he was a witness entitled to full credit.
About a year later a younger son, named Lew Horn, arrived at the port of San Francisco, was also admitted as the minor son of a resident Chinese merchant, and is now, according to the testimony, at Los Angeles, Cal., engaged in business, not as a laborer, but as a Chinese merchant.
These two sons are the only children of Lew Fook Shing. The mother remains in China; and, in explanation, Lew Fook Shing testifies that she is a bound-foot woman, that she has a home, that he at one time furnished her with $2,000 in money, and has since sent her money to aid in her support; that, because she is a bound-foot woman, it is difficult for her to get about; that she likes to be with relatives, and is adverse to coming aboard a steamer.
Defendant, upon his arrival and after the delay in San Francisco, incident to establishing his right to enter, went to Oakland, Cal. There is some uncertainty in the testimony as to how long he remained in Oakland and San Francisco before coming to Cleveland, Ohio. Defendant, when first arrested, April 30, 1914, at Cleveland, Ohio, was immediately interrogated by the immigration inspector, and at that time answered the question, 'How long did you stay in Oakland? ' 'About one or two months; then I came here. ' Upon the former hearing he said:
'I stayed in San Francisco about two months to learn the business, and then went to Oakland and stayed with my father about four months, and left him and came to Cleveland.'
His father on this hearing goes into greater detail, and says that when his son was first admitted he came to his store and lived with his father at Oakland for a few months, then he went to San Francisco and stayed at the Fook Weh store at No. 707 Grand avenue, for the purpose of learning the business, and attended school. Then, about two months later, he returned to his father's store at Oakland, remaining there some two months more, before his departure for Cleveland.
The father did not testify at the former hearing, but his statement was taken ex parte before an immigration inspector at San Francisco, and was introduced on behalf of the government. He was not asked how long his son had remained with him in Oakland, nor how long he remained in San Francisco. He does say that his son was engaged in learning business after his arrival and before his departure for the East.
I believe and find that the father's statement of his son's movements before coming East is true. The unrefreshed recollection of the son, made immediately upon his arrest, does not deprive his later testimony, or that of his father, of credibility, especially as other inaccuracies to the defendant's prejudice in matters of time appear in the same statement.
Defendant came to Cleveland, Ohio, not later than six months after his arrival in the United States. He and his father say that he came in company with two Chinese merchants and family friends named Chin Check Weh and Low Lim, and that he came for the purpose of finding a suitable location and engaging in business. He has not, since his arrival in Cleveland, been engaged in or connected with any mercantile business, but has lived with the owner of a laundry, and such labor as he has performed has been in and about that laundry; hence the government's contention that he did not in fact and in good faith enter as the minor son of a Chinese merchant, but really for the purpose of engaging in the occupation of a laborer.
The government's evidence, other than statements of defendant and his father, shows only that defendant had worked in the laundry of Ben Hop Lee, 10613 Euclid avenue, during a period of less than one year prior to his arrest. The witnesses, William Graham, John G. Harvie, W. I. Rich, Frank M. Potter, Franklin J. Savesky, George F. Wilson, Joseph Francis, and H. T. Grubbs, testified June 4, 1915. None of them had seen the defendant more than two or three times; none of them fix the time at which he was seen in the laundry at work earlier than 13 months prior to this date. The others give dates ranging from 2 or 3 months to 6 months. He was apparently, as testified to by these witnesses, in working clothes, sometimes ironing, other times handing out laundry parcels, and apparently occupying the same relation to the business as any other Chinese person there employed. Defendant was arrested April 30, 1914, and practically all of the work thus done was at a date later than his arrest.
An inspection of defendant's hands, made by the United States commissioner at the hearing May 22, 1914, and at the former hearing June, 1915, showed that the defendant's hands were calloused, as those of a person doing manual labor. The defendant's movements from the time he left Oakland, shortly after his arrival, until the time covered by the foregoing testimony, depend on his statements, those of his father, and Loo Way, owner of the laundry in question.
Father and son have testified that the son left Oakland with the two Chinese merchants, as already stated; that when he left Oakland no definite destination was in the mind of any person; that these Chinese persons then believed that the East afforded good prospects for engaging in business; that the father furnished the son with $200 in money and intrusted him to the supervision primarily of Loo Lim. The father next heard from the son in Cleveland. All witnesses agree that he immediately took up his residence at the Ben Hop Lee laundry. About a year later Loo Lim left Cleveland and went to Boston later returning to Cleveland, and in 1913 returning to China. Chin Check Weh remained longer in Cleveland, but within a period of 2 years he disappeared; he was not produced at the trial, and his...
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