Weedin v. Moy Fat

• Decision Date: 30 November 1925
• Docket Number: No. 4599.,4599.
• Citation: 8 F.2d 488
• Parties: WEEDIN, Commissioner of Immigration, v. MOY FAT.
• Court: U.S. Court of Appeals — Ninth Circuit

8 F.2d 488 (1925)

WEEDIN, Commissioner of Immigration, v. MOY FAT.

No. 4599.

Circuit Court of Appeals, Ninth Circuit.

October 26, 1925.

Rehearing Denied November 30, 1925.

Thos. P. Revelle, U. S. Atty., and Donald G. Graham, Asst. U. S. Atty., both of Seattle, Wash., for appellant.

John J. Sullivan and V. G. Frost, both of Seattle, Wash., for appellee.

Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.

GILBERT, Circuit Judge.

The appellee, a Chinese alien, for 43 years a resident of the United States, pleaded guilty to an indictment which charged him with the crime of receiving and concealing narcotic drugs, in that he "did unlawfully and feloniously receive and conceal narcotic drugs, to wit, 120 grains of smoking opium, after the same had been imported into the United States, he, the said Moy Fat, then and there well knowing the same to have been imported contrary to law." He was sentenced to two months' imprisonment, and at the expiration of said term he was held by the Commissioner of Immigration by virtue of a warrant of deportation issued by the Secretary of Labor under the provisions of section 2, sudb. (e), of the Act of February 9, 1909, as amended by the Act of May 26, 1922, § 1 (Comp. St. Ann. Supp. 1923, § 8801). Upon the hearing on a writ of habeas corpus which he sued out, the court below released him under bond pending the Commissioner's appeal from the order.

We are unable to agree with the appellee's contention that the judgment is sustainable on the ground that the indictment fails to charge an offense against the laws of the United States. It is a controlling principle of the federal courts that such a question is one for the determination of the court in which the indictment is pending, and any error in its decision could not affect its jurisdiction nor warrant the discharge of the accused on habeas corpus. Matter of Gregory, 219 U. S. 210, 31 S. Ct. 143, 55 L. Ed. 184; Bechtold v. United States (C. C. A.) 276 F. 816; Collins v. Morgan, 243 F. 495, 156 C. C. A. 193; Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085.

But the order of deportation purported to have been had under the authority of the Act of May 26, 1922 (42 Stat. 596), subdivision (e), § 2, which provides that the alien who may be deported for a violation of the Narcotic Drugs Import and Export Act shall "be taken into custody and be deported in accordance with the provisions of sections 19 and 20 of the Act of February 5, 1917, entitled `An act to regulate the immigration of aliens to, and the residence of aliens in, the United States,' or provisions of law hereafter enacted which are amendatory of, or in substitution for, such sections." Section 19 of the Act of February 5, 1917 (39 Stat. 889 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289Ljj), provides for deportation of "any alien who is hereafter sentenced to imprisonment for a...