Young Ah Chor v. Dulles

• Decision Date: 11 September 1959
• Docket Number: No. 16264.,16264.
• Citation: 270 F.2d 338
• Parties: YOUNG AH CHOR, Appellant, v. John Foster DULLES, Secretary of State of the United States of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 338 (1959)

YOUNG AH CHOR, Appellant, v. John Foster DULLES, Secretary of State of the United States of America, Appellee.

No. 16264.

United States Court of Appeals Ninth Circuit.

September 11, 1959.

N. W. Y. Char, Honolulu, Hawaii, for appellant.

Louis B. Blissard, U. S. Atty., Daral Gordon Conklin, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.

Before CHAMBERS, HAMLIN and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant and one Young Ah Kwai were born in Sun Mung Tung Village, China. In 1951 they applied for United States passports from the American Consul at Hong Kong, British Crown Colony, where they resided at the time of the applications, although both claimed the Territory of Hawaii as their permanent residence. The applications were denied. Thereafter they instituted an action in the United States District Court of Hawaii, under Section 503 of the Immigration and Naturalization Act of 1940 (Section 903, Title 8 U.S.C.A.^*), for decrees adjudging them to be citizens of the United States. They both claimed to be sons of Young Yick, who was declared to be a national of the United States by the United States District Court for the District of Hawaii on May 6, 1950. During the trial the district judge took judicial notice of such judgment, but stated in his oral opinion that were he free to reexamine the citizenship of Young Yick he would be disposed to reach a different conclusion from that reached by the court in 1950. The judgment states "* * * Young Yick is a national of the United States by virtue of his birth at Palama, Oahu, Territory of Hawaii, on or about April 11, 1895."

The evidence offered and received on behalf of appellant in his case in chief consisted mainly of testimony of Young Yick, of appellant, and of Young Ah Kwai. Young Yick testified that he was the father of appellant and Young Ah Kwai; that they were both born in China to his wife; that he was present at the birth of Ah Kwai in China in 1920; that he returned to Hawaii in 1921 and that appellant was born in China the following year; that he next returned to China in 1934, and again in 1947; that he first saw appellant on his visit to China in 1934; that on the return trips to China he lived with his wife and children in the Chinese village; that he sent back remittances to China for the support of his family; that family photographs were sent to him by his wife and that individuals appearing in the photographs were members of his family, including Ah Kwai and appellant; that he caused Ah Kwai to come to the Hawaiian Islands in 1937, but that Ah Kwai returned to China in 1937 or 1938; and that he furnished affidavits to be delivered to the American Consul at Hong Kong in connection with the application of appellant and Ah Kwai for passports. Appellant and Young Ah Kwai testified that they were the sons of Young Yick. Family photographs purportedly depicting appellant, Young Ah Kwai, their claimed mother, and other claimed members of the family, village school records of appellant and Ah Kwai, and bank remittances sent by Young Yick from Honolulu to China purportedly for the support of his family; were received in evidence.

The deposition of Young Hon Sun was offered by appellee and received in evidence, and the deposition of one Young Chung, although taken by the appellee, was offered and received in evidence on behalf of appellant as rebuttal testimony.

The testimony of other witnesses is of no significance in respect to the questions to be reviewed on this appeal.

The testimony of Young Yick, Young Ah Kwai and appellant was taken primarily through a government interpreter.

In his findings of fact, the district judge found: "That Young Yick was declared to be a national of the United States by this Court, in Civil No. 924, in the United States District Court for the District of Hawaii on May 6, 1950; That Young Yick is married to Fung Wai Kuen; That Young Ah Kwai is the son of Young Yick and Fung Wai Kuen; That the testimony of Young Yick, Young Ah Kwai and Young Ah Chor is not credible, and no reliance can be placed upon their statements; that Young Ah Chor is not the son of Young Yick, but is the son of Young Hoin Cheung. This is established by the testimony of Young Hong Sun, the only disinterested witness in the case." As conclusions of law the court found "that Young Ah Kwai is the legitimate son of Young Yick"; that "Young Ah Kwai is a national of the United States and is entitled to a judgment declaring him to be such; it has not been established by a preponderance of the evidence that Young Ah Chor appellant is the son of Young Yick. It has, in fact, been established by a preponderance of the evidence that he is not the son of Young Yick"; that "Young Ah Chor is not a national or citizen of the United States and is not entitled to a judgment declaring him to be a citizen of the United States." In accordance with the findings of fact and conclusions of law, a judgment was entered declaring Young Ah Kwai to be a citizen and national of the United States, and that Young Ah Chor appellant is not a national or citizen of the United States and is not entitled to a judgment declaring him to be such.

The United States did not appeal from the judgment in favor of Young Ah Kwai.

The specifications of error may be fairly summarized as follows: (1) that the court erred in finding that appellant had not established his case by a preponderance of the evidence; (2) that a trial judge who is not familiar with the Chinese language is incapable of judging the credibility of witnesses by their conduct when such witnesses testify through an interpreter; (3) that the trial court erred in overruling appellant's objections to portions of appellee's cross-examination of Young Yick; (4) that the trial court erred in receiving over objections of appellant's counsel portions of the testimony contained in the deposition of Young Hon Sun, whose deposition was received on behalf of appellee.

We will consider these specifications ad seriatim.

1. The law is well settled that a person who seeks a judicial declaration of his citizenship under the Nationality Act of 1940 must establish his American citizenship by a fair preponderance of the evidence. Lau Ah Yew v. Dulles, 9 Cir., 257 F.2d 744. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., precludes an appellate court from disturbing findings of fact by a trial court unless they are clearly erroneous. Yip Mie Jork v. Dulles, 9 Cir., 237 F.2d 383, at page 385. In judging the credibility of a witness and determining the weight to be given to his testimony, the trier of the fact may consider the witness' demeanor and manner while on the stand, the character of his testimony as being probable or improbable, inconsistencies, patent omissions and discrepancies in his testimony, or between the testimony of different witnesses, contradictory testimony, his interest in the outcome of the case, his relationship to the litigants, and many other factors bearing upon the truthfulness or untruthfulness of the witness' testimony. As stated in Mitsugi Nishikawa v. Dulles, 9 Cir., 235 F.2d 135, at page 140, reversed on other grounds 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659: "The trier of fact need not accept the uncontradicted testimony of a witness who appears before it, and the demeanor of that witness may be such as to convince the trier that the truth lies directly opposed to the statements of the witness. N.L.R.B. v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, 86, affirmed sub nom. Howell Chevrolet Co. v. N.L.R.B., 346 U.S. 482, 74 S.Ct. 214, 98 L.Ed. 215; Chow Sing v. Brownell, 9 Cir., 217 F.2d 140, 143; Lew Wah Fook v. Brownell, 9 Cir., 218 F.2d 924; Mar Gong v. Brownell, 9 Cir., 209 F.2d 448, 449, 450, Wigmore on Evidence, Third Ed., Vol. VII, § 2034 n. 3; Zimmer v. Acheson, 10 Cir., 191 F.2d 209, 212. This rule is particularly true where the witness is interested in the outcome of the case, or where his testimony is improbable or contains patent omissions and inconsistencies. Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 35 L.Ed. 501; Zimmer v. Acheson, supra." See also Joseph v. Donover Co., 9 Cir., 261 F.2d 812, at page 824.

We have carefully reviewed the entire record in this case and we are unable to say that the finding of the trial court that appellant failed to establish his case by a preponderance of the evidence is clearly erroneous.

2. The Chinese interpreter whose services were used during the trial was apparently employed by the Immigration Service. Counsel for appellant stated that he had no objection to the use of such government employee and that "both sides prefer it, rather than some other interpreter." At various times during the trial the interpreter's choice of Chinese words was corrected or questioned by appellant's counsel, who appeared to be fluent in the same dialect as that used by the witnesses. Appellant makes no serious claim that the interpreter did not properly perform his duties. Appellant's contention rather is that the trier of fact (unfamiliar with the language being used by the interpreter and the witness) would be unable to determine exactly what words or phrases in the exchange of questions and answers between the interpreter and the witness caused a witness' reaction to be manifested in his demeanor. For that reason appellant argues that the credibility of a witness using a language unfamiliar to the trial court must be determined solely by the translated words of the witness and not by the manner and demeanor of the witness on the stand. While the task of a trial judge may be more difficult in cases of this type,¹ such fact does not deprive the trial court of the right to consider the manner and demeanor of the witness in determining the weight to be given to such witness' testimony. We are unable to agree with appellant's contention.

3. The cross-examination of Young Yick by appellee furnishes...