United States v. Rubia, 9185.
| Decision Date | 01 March 1940 |
| Docket Number | No. 9185.,9185. |
| Citation | 110 F.2d 92 |
| Parties | UNITED STATES v. RUBIA. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and W. A. Paisley, Asst. U. S. Atty., of Jacksonville, Fla., for appellant.
No appearance was entered for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Appellee, a native born Filipino, is a coast guardsman, serving his sixth consecutive enlistment. Presenting six honorable discharges, he applied for naturalization under Section 388, Title 8, U.S.C.A., authorizing Filipinos with a service record to so apply, and Section 393 of the same title, making honorable discharge certificates prima facie evidence to satisfy the requirements of residence and good moral character.1 The examiner objected that he had not behaved as a person of good moral character, because in 1925 and 26 he had served a term for embezzlement of an automobile and because he had admitted that for six months prior to December, 1938, when he filed his petition, he had been living, as man and wife, with one Hazelle Gay, a married woman, living apart from her husband. The District Judge nevertheless thought the applicant entitled to admission and admitted him to citizenship. The United States appeals, and the proceedings at the hearing not having been taken down stenographically, brings up a condensed statement of them.
Since appellee's conviction happened more than 12 years before he filed his petition, and five of his enlistments and discharges were after the conviction, it is not seriously argued here that the judgment should be reversed, because of it. The government's reliance is on the testimony of the examiner that "applicant had resided as man and wife with one Hazelle Gay, from May 1938, to December 1938, and that he had admitted to the examiner that she was a married woman living apart from her husband," and on applicant's testimony in open court that he had lived with her as man and wife from May to December. Its insistence is that since by Florida Statutes, adultery is ground for divorce, and living in an open state of adultery is punishable both by imprisonment and fine, applicant's admission is evidence of not only immorality, but crime, completely overthrowing the prima facie effect of the service and honorable discharge certificate, by showing him to be, not a person of good moral character. United States v. Wexler, D.C., 8 F.2d 880; United States v. Unger, D.C., 26 F.2d 114; Estrin v. United States, 2 Cir., 80 F.2d 105. In all of the cited cases, the applicant had applied generally under the five-year statute with no presumption in his...
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