RAY, District Judge
(after stating the facts as above). Having given a somewhat detailed statement of the testimony in these cases, it only remains to call attention to the rules of law and evidence applicable thereto, and which must control this court in determining the appeals.
The influx of Chinese laborers into the United States attracted the attention of the congress prior to 1880, and has resulted in the enactment of. certain laws from time to time applicable to all classes of Chinese aliens within or seeking entrance into the United States. With the wisdom of these laws the courts and judges have nothing whatever to do. It is the duty of the judicial officers charged with their enforcement to accept such laws as wise arid suitable to the conditions that demanded and secured their enactment, and interpret and (so far as they are found to be constitutional and capable of execution) enforce them accordingly. Unless a different course of procedure is provided by law, these statutes to prohibit or regulate the coming of Chinese aliens into the United States, or to expel them therefrom, are to be executed, and all trials thereunder conducted according to the established rules and practice of the courts of the United States in similar cases. Except as stated, the same rules of evidence are to be applied, and there should be no relaxation of these established rules in the administration of the law, on the plea that the laws are severe or rigorous. For the modification of such laws, if any modifications are desired, application must be made to the lawmaking branch of the government, which, within its sphere and constitutional power, is supreme.
Chinese persons within the United States (meaning thereby the organized states and territories), and their descendants, when born therein of parents residing here, and not employed in a diplomatic or official capacity under the emperor of China, are citizens of the United States, and, when such fact is established in the mode and manner prescribed by the proper authorities, are entitled to be and remain [455] therein, and are entitled to the equal protection of the laws. U. S. v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. Residents, alien born, are also entitled to the equal protection of the laws. Yick Wo. v. Hopkins, 118 U. S. 356-369, 6 Sup. Ct. 1064, 30 L. Ed. 220; Wong Wing v. U. S., 163 U. S. 242, 16 Sup. Ct. 977, 41 L. Ed. 140. The power to expel or exclude aliens, being a power affecting our international relations, is vested in the political departments of the government, and is to be regulated by treaty or act of congress, and is to be executed by the executive authority, except so far as the judicial department has been authorized or is required by the constitution to intervene. Fong Yue Ting v. U. S., 149 U. S. 711, 713, 714, 13 Sup. Ct. 1016, 37 L. Ed. 905; U. S. v. Wong Kim Ark, 169 U. S. 699, 700, 18 Sup. Ct. 456, 42 L. Ed. 890. The mode and manner of ascertaining this fact of citizenship as a means for excluding or expelling aliens is exclusively within the power of congress, acting within its constitutional limitations, to determine. Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905; U. S. v. Wong Kim Ark, 169 U. S. 699, 700, 18 Sup. Ct. 456, 42 L. Ed. 890. The right to exclude or expel aliens of any nationality is our inherent and inalienable right as a sovereign and an independent nation, and this power may be exercised entirely through executive officers. Same cases. It follows that a proceeding under our law to expel or exclude aliens is not a criminal prosecution or proceeding. 149 U. S. 730, 13 Sup. Ct. 1016, 37 L. Ed. 905. The defendants are not on trial for the offense of coming into or being in the United States contrary to law, but the government, in the exercise of its sovereign power, is seeking to expel or exclude aliens who have no right to be here. This is not done as a punishment for coming in or being here, whether lawfully or unlawfully, but as a matter of public policy. A crime is “a wrong which the government notices as injurious to the public, and punishes in what is called a ‘criminal proceeding,’ in its own name.” 1 Bish. Cr. Eaw, § 43; Kentucky v. Dennison, 24 How. 66, 16 E. Ed. 717; People v. Donohue, 84 N. Y. 441. Cent. Diet, tit. “Crime.” True, congress may make it a crime for an alien to come into this country in violation of our laws, or, being herein, to remain in violation of such laws after being ordered to depart; and should this be done, and a punishment prescribed for the violation of such law, the trial would be by the judicial, and not by the executive, branch of the government, and the constitutional right of trial by jury, etc., would necessarily inure to the benefit, and operate for the protection, of the offender. Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977, 41 L. Ed. 140.
Section 4 of the act of May 5, 1892, “An act to prohibit the coming of Chinese persons into the United States,” was declared unconstitutional by the supreme court of the United States, in the above-cited case, because no judicial trial according to the constitution to establish the guilt of the accused was provided, not because the power to enact a criminal statute in accordance with the constitution, and accompanied or limited by the safeguards of that instrument, does not exist. This was also declared, in substance, by Mr. Justice Gray in Fong Yue Ting v. U. S., 149 U. S. 730, 13 Sup. Ct. 1016, 37 L. Ed. [456]*456905. 'íhe decision in the Wong Wing case, supra, took from the act of May 5, 1892 (27 Stat. 25), its criminal features. The result is that in all these Chinese deportation cases the defendants may be sworn as witnesses in their own behalf. Potter v. Bank, 102 U. S. 163, 26 L. Ed. 111; Bradley v. U. S., 104 U. S. 442, 26 L. Ed. 824; Green v. U. S., 9 Wall. 655, 19 L. Ed. 806. At their own request, defendants may testify in all criminal cases. In civil cases there is no provision of law that their failure to be sworn shall neither create a presumption nor permit an inference against them. In criminal cases there is such a provision. Act March 16, 1878, c. 37 (U. S. Comp. Stat. 1901, p. 660). “And his failure to make such request shall create no presumption against him.” If defendants fail to give testimony in their own behalf, and explain doubtful matters peculiarly within their own knowledge, in these deportation cases, that fact may be commented on, and used to their disadvantage, possibly, for such fact may be considered by the court or commissioner, with all the evidence and circumstances of the case, and justify him in taking testimony they might have explained or denied, strongly against them. See cases cited below. Hence the commissioners in each of these cases had the right to consider the silence of the defendants in their respective cases in that regard, and such silence or failure to deny or contradict certain statements, or even give evidence on the main issue, may have turned the scales. Such silence cannot be taken as proof of any fact, or as an admission, but it is a circumstance which may be considered in determining which of two witnesses contradicting each other has testified correctly. Quock Ting v. U. S., 140 U. S. 420, 11 Sup. Ct. 733, 851, 35 L. Ed. 501; Schwier v. Railroad Co., 90 N. Y. 564; Grinnell v. Taylor, 85 Hun, 85, 32 N. Y. Supp. 684, affirmed in 155 N. Y. 653, 49 N. E. 1097.
Said the court, per Field, J., in Quock Ting v. U. S., supra:
“It Is incredible that a father would allow the exclusion of his son from the country where he lived, when proof of his son’s birth and residence there for years could, have been easily shown, if such in truth had been the fact.”
Section 3 of the act of May 5, 1892 (27 Stat. 25), has wisely and necessarily provided (if the law is to be enforced):
“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.”
The burden of proof, not of evidence, merely, is on the defendant. There is a wide difference between testimony and evidence, as well as between evidence and proof. There may be pages of testimony of some releváncy, without any substantial evidence of the fact sought to be established. So there may be some evidence of such fact, but no sufficient proof. Testimony is the statements given by the witnesses, and, if relevant, they are evidence. Evidence is whatever may properly be considered by the court, or properly may be submitted to the jury for its consideration, while proof is the legal effect of evidence. People v. Beckwith, 108 N. Y. 67-73, 15 N. E. 53; Steph. Dig. Ev. (2d Ed.) p. 3, note 2. See 1 Tayl. Ev., notes 2, 3, by Chamberlayne. [457] This statute demands proof to the satisfaction of the commissioner or judge, not the production of a mere preponderance of testimony or of evidence. Evidence may or may not be believed by the court or jury, but proof must be accepted and acted on. And the rule is well settled that in civil cases only a preponderance of credible evidence is demanded. Insurance Co. v. Ward, 140 U. S. 76-90, 1 Sup. Ct. 720, 35 L. Ed. 371; Seybolt v. Railroad Co., 95 N. Y. 562, 47 Am. Rep. 75; Taylor v. Felsing, 164 Ill. 331, 45 N. E. 161; Hall v. Wolff, 61 Iowa, 559, 16 N. W. 710; Strand v. Railway Co., 67 Mich. 380, 34 N. W. 712. But when the credible evidence on the two sides is in equipoise, the verdict or decision should be against the party having the general burden of proof on the main issue. Broult v. Hanson, 158 Mass. 17, 32 N. E. 900; Whitlatch v. Casualty Co., 149 N. Y. 45, 43 N. E. 405; Railroad Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748; Rogers v. Wallace, 10 Or. 387; Gage v. Railway Co., 88 Tenn. 724, 14 S. W. 73. See, also, Trust Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358. In this connection it should be remembered that credible and undisputed evidence amounts to proof, and must be accepted as such. What shall be accepted as satisfactory proof is evidence that satisfies the judicial mind. The defendant is not required to satisfy the prejudiced, the capricious, the unreasonable, or the arbitrary mind; but he must satisfy the judgment of a reasonable man, acting honestly and with good judgment, and without prejudice or bias. The commissioner may not arbitrarily or capriciously, or against reasonable, unimpeached, and credible evidence, containing no element of inherent improbability, and which is uncontradicted in its material points, and susceptible of but one fair construction, refuse to be satisfied. When clearly, from the evidence, the judicial mind ought to be satisfied, in the eye of the law it is satisfied. To hold otherwise would subject the Chinese citizen to the caprice of the commissioner before whom brought. The right of a Chinese person, born in the United States under the circumstances stated, to be and remain therein, cannot be questioned or denied on any ground; assuming, of course, such right has not been forfeited by the commission of some act entailing that consequence.
The general rule is that uncontradicted evidence, free from inherent improbability, when given by disinterested witnesses, and in n<? way discredited, is conclusive. Quock Ting v. U. S., 140 U. S. 420, 11 Sup. Ct. 733, 851, 35 L. Ed. 501; Kavanagh v. Wilson, 70 N. Y. 177-179; Wait v. McNeil, 7 Mass. 261. See, also, numerous cases hereafter cited. The witness must be credible, and it must appear that he knows whereof he speaks. This may be shown by his own testimony in many, and probably in most, cases. It cannot be said, however, that when a statute provides, in terms, as here, that the fact must be proved to the satisfaction of the commissioner, that officer is bound, as matter of law, to be satisfied with the evidence of a single witness, a total stranger to the court and community, however fair, clear, and conclusive the statement alone may appear to be. 3 Greenl. Ev. § 377. It must be that the court is at liberty to consider the source of the testimony given, as well as its quality and amount. “Satisfactory or sufficient evidence: That amount or weight of evidence which is [458] adapted to convince a reasonable mind.” Steph. Dig. Ev. (2d Ed.) p. 3, note 2. Com. v. Robinson, 146 Mass. 571, 16 N. E. 452; Deal v. State, 140 Ind. 354, 39 N. E. 930.
Greenleaf says (1 Greenl. Ev. § 2);
“By ‘satisfactory evidence,’ which is sometimes called ‘sufficient evidence,’ is intended that amount of proof which ordinarily satisfied an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to •this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a common man; and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest.”
2 Starkie, Ev. 514.
It is not improbable that this rule was in the mind of the congress when it enacted the law under consideration.
The truth of the unsupported statements of a single witness may be tested by their inherent probability, by their clearness and their consistency with each other, by the intelligence of the witness in observing and reporting upon the facts to which he testifies, by his freedom from bias and prejudice as evidenced by words or conduct, or by his known character for honesty and truth. Cornwell v. Riker, 2 Dem. Sur. 354. If the witness be a total stranger in the community where called, and to the party against whom he gives evidence, and such evidence relates to an alleged fact of which several obtainable witnesses may and must know, but as to the existence or nonexistence of which no other person gives testimony, this circumstance alone may justify the court in refusing to find that the alleged fact has been established to its satisfaction. A presumption, or inference, rather, may arise from the nonproduction of obtainable living witnesses, having knowledge of the facts, that the fact is otherwise than as stated by the witness produced, or at least, that the absent witnesses would not sustain the witness produced. Quock Ting v. U. S., 140 U. S. 420, 11 Sup. Ct. 733, 851, 35 L. Ed. 501. The result in such a case is that the asserted fact may not be proved to the satisfaction of the commissioner or court. The court or commissioner may not unreasonably demand a large amount of cumulative evidence, but it may demand, if in existence and obtainable, more than one witness on any given material point. The liability of a witness to mistakes demands this. The source whence the witness derived his knowledge, or the probability of his having been in a situation to know the fact or observe the transaction testified to, may also be considered by the court in determining the truth of the .statements made in court. Same case. Evidence from a male person, not the father, that a certain person was born at a certain time and place (that being the fact in controversy) unaccompanied by any details as to how or why he knows such fact, may not be conclusive on the court. But to warrant a finding against the statement of the witness, something should appear upon the record to justify the court in refusing to give it full faith and credit. It is true that many times the appearance of a witness on the stand, his quibbling, his reluctance, his hesitation, or his zeal and apparent interest, not expressed in words, effectually discredits the witness, and [459] in such case the court is at liberty to refuse to find in accordance with the statements made. People v. Tuczkewitz, 149 N. Y. 251, 43 N. E. 548. In such cases the record should be made to show the facts, so far as such facts, by proper questions, may be noted on the records of the court. It is impossible to prescribe any fixed rule by which the credibility of the witness 'is to be tested, or which shall bind the conscience of the court as to the conclusiveness of the evidence in a given case, but ordinarily the record will disclose to the appellate tribunal the reasons why full faith and credit were not given and should not be given to the witness.
Attention is called to the following New York cases, all pertinent and more or less in point: Lomer v. Meeker, 25 N. Y. 363; Seibert v. Railroad Co., 49 Barb. 587; Conrad v. Williams, 6 Hill, 447; Stafford v. Reamy, 2 Jones & S. 269; Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102; Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109; Plyer v. Insurance Co., 121 N. Y. 691, 692, 24 N. E. 929; People v. Tuczkewitz, 149 N. Y. 240-250, 43 N. E. 548; Dwight v. Insurance Co., 103 N. Y. 341, 359, 360, 8 N. E. 654, 57 Am. Rep. 729; Elwood v. Telegraph Co., 45 N. Y. 549-553, 6 Am. Rep. 140; Koehler v. Adler, 78 N. Y. 287-291; Kavanagh v. Wilson, 70 N. Y. 177-179.
In a criminal case it is not within the power of the court to direct a verdict of guilty or not guilty, or compel the jury to find such a Verdict, however clear and conclusive the evidence may be. Therefore the jury may find a verdict of guilty or not guilty arbitrarily or capriciously, and when the finding is “Not guilty” the verdict must stand. The court may, however, advise the jury to find a verdict of not guilty, and may reverse a conviction as against or unsupported by the evidence. Therefore the rule that reasonable, disinterested, credible, and uncontradicted evidence, having no element of inherent improbability, cannot be disregarded, has no application in a criminal case. The main reason for this is that in criminal trials the jury is the sole judge of the facts.- Not so in civil cases. Here there is always a preliminary question for the court, viz., is there any evidence sufficient to support a verdict? Therefore decisions in criminal cases have no great weight in determining the question now before this court. People v. Tuczkewitz, 149 N. Y. 240-250, 43 N. E. 548. The decisions of the federal courts are equally clear and conclusive. Quock Ting v. U. S., 140 U. S. 417-420, 11 Sup. Ct. 733, 851, 35 L. Ed. 501; Willett v. Fister, 18 Wall. 91, 21 L. Ed. 804.
In People v. Tuczkewitz, 149 N. Y. 240, 43 N. E. 548, the trial court was requested to charge “that the jury are bound to believe the testimony of any disinterested witness which is not contradicted and which is not in itself improbable.” The court declined, and the court of appeals, per Haight, J., in passing on this question, after reviewing the cases, says (no dissent on this point):
“It will be observed that the words ‘unimpeached,’ ‘discredited,’ and ‘not incredible’ are used in the cases, but we find no such words in the request. A witness may be discredited even when not contradicted. The examination may disclose that the witness was of bad character, a criminal and perjurer, and yet it may not be within the power of a party to contradict his testimony. Eis manner upon the witness stand, his halting and quibbling in answering [460] questions, may satisfy both the court and the jury that he is swearing falsely,, and yet no witness may be in existence that could contradict his testimony. He may have told a probable story, and yet it may have been false and rendered incredible by reason of his character and manner.”
In Quock Ting v. U. S., 140 U. S. 420, 11 Sup. Ct. 734, 35 L. Ed. 501, the supreme court, per Field, J., says:
“Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by any one, should control the decision of the court; but that rule, admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions in his account of particular transactions or of his own conduct as to discredit his whole story. His manner, too, of testifying, may give rise to doubts of his sincerity, and create the impression that he is giving a wrong coloring to material facts. All these things may properly be considered in determining the weight which, should be given to his statements, although there be no adverse verbal testimony adduced.”
That court cites with- approval, and thus makes those cases authority here, Kavanagh v. Wilson, 70 N. Y. 177-179; Koehler v. Adler, 78 N. Y. 287; Elwood v. Telegraph Co., 45 N. Y. 549, 6 Am. Rep. 140; and Wait v. McNeil, 7 Mass. 261.
In Elwood v. Telegraph Co., supra, the court, per Rapallo, J.,. said:
“It is undoubtedly the general rule that where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited, and have the effect of overcoming a mere presumption. Newton v. Pope, 1 Cow. 110; Lomer v. Meeker, 25 N. Y. 361. But this rule is subject to many qualifications. There may be such a degree-of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The-general rules laid down In the books at a time when interest absolutely disqualified a witness necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law, be added. And furthermore it is often a difficult question to decide when a witness-is, in a legal sense, uncontradicted. He may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness for the simple reason that no other witness has denied them, and that the character of the witness -is-not impeached.”
The court then, refers to some of the evidence, and adds:
“There is also a want of distinctness in the statements of the witnesses-irrespective of any question of credibility.”
In Koehler v. Adler, supra, the court cites, quotes, and approves-the Elwood case.
In Kavanagh v. Wilson, 70 N. Y. 179, the court clearly states that, the inherent improbabilities of the statements made, as indicated by established or known facts, are sufficient to discredit the evidence.
In Dwight v. Insurance Co., 103 N. Y. 355, 8 N. E. 654, 57 Am. Rep. 729, the failure to call certain witnesses known to have knowledge on the subject is commented on as some evidence that certain: facts alleged, had no existence.
[461] In Stafford v. Leamy, 2 Jones & S. 269, it is held that a witness may impeach himself by his own contradictory or conflicting statements, or—
“By exhibiting such a want of intelligence or of memory as to incapacitate him from representing a past event so that reliance could be placed on his statement, or by giving testimony not credible on its face.” Also: “Although witnesses are presumed to testify correctly, unless something appears in the case as a basis for a judgment to the contrary, yet if there appears in the case, even if it be in his own testimony only, anything which tends to the impeachment of their credibility, the finding of the jury or referee on that fact will not be disturbed, any more than a finding on any other fact.”
It is true that hesitancy in giving testimony may be due to physical infirmity or to sluggish mental action; that discrepancies in giving dates or in making computations or correct figures may be due to lack of arithmetical training; that a witness may assert that a person was born at a certain place and is of a certain age, and, in giving an account of his life since such event, honestly err in computation of time, and so fill his testimony with discrepancies. But if such mistaken and erroneous statements are made under oath in a court of justice, and left uncorrected, and the court has no other evidence upon which to base a judgment, and the contradictions are on material points, the party adducing such evidence and relying solely thereon must necessarily fail, for the witness, however honest, is lacking in sufficient intelligence or memory to properly inform the court. Hence the necessity for testimony that is both truthful and intelligent. Otherwise it ■cannot be satisfactory to the court. An honest witness, who has sufficient memory to state but one fact connected with an important transaction, and that fact a material one, cannot be safely relied upon, as such weakness of memory not only leaves the case incomplete, but throws doubt upon the accuracy of the statement made. Such a witness may be honest, but his testimony is' not reliable. Mere error of statement, if corrected by the witness, will not discredit him or seriously impair the weight of his testimony, but the statement of a witness which abounds in errors would show such a weak or confused mental condition as to justify the court in refusing judgment based thereon, even when otherwise uncontradicted; and the appellate court, in the discharge of its duty, would be called upon to reverse any decree based solely on such weak and untrustworthy testimony. Testimony given in court may be insufficient to prove an alleged fact, because of the mental incapacity of the witness, as well as because of his moral obliquity. Full weight is given the fact that certain acts in a given transaction, or happening in former years, impress and are retained by the memory more vividly than others; but the legal effect of such ■a transaction, made up of many acts, cannot be properly adjudicated from even a correct statement of but one, and no court should attempt to do so. A witness who goes back many years and describes one transaction, and confesses his inability to recall any other occurring within years of that time, may not be wholly reliable. Hence when a party comes into court with but one witness, and that witness attempts and purports to correctly state an event occurring at a given time, and at a place where he had resided for a long time, and with [462] which place he was familiar, but is unable to give any description of the locality, or to state any other transaction occurring at about the same time, the court is fully justified in refusing to be satisfied that the transaction described occurred as stated. A memory so weak and nonretentive cannot be said to satisfy the judicial mind to a degree that compels reliance thereon. These conclusions are fully justified by the remarks of Mr. Justice Field in Quock Ting v. U. S., 140 U. S. 419, 420, 11 Sup. Ct. 734, 35 L. Ed. 501, viz.:
“The testimony given by 'himself amounted to very little. Indeed, it was of no force or weight whatever. The particularity and positiveness with which he stated the place of his birth in San Francisco was evidently the result of instruction for his examination on this proceeding, and not a statement of what he had learned from his parents in years past. And his failure to mention any particulars as to the city of San Francisco, which he certainly ought to have been able to do if he resided there during the first ten years of his life, was surprising." A boy of any intelligence, arriving at that age, would remember, even after the lapse of six years, some words of the language of the country, some names of streets or places, or some circumstances that would satisfy one that he had been in the city before. But there was nothing whatever of this kind shown. He gave the name of no person he had seen; he described no locality or incident relating to his life in the city, nor did he repeat a single word of the language, which he must have heard during the greater part of several years, if he was there.”
Such want of memory, whether in fact attributable to ignorance of the whole matter, to an unwillingness to testify, or to an inability to remember, justifies the court in refusing its assent to the statement made, for the reasons stated, and for the further reason that many times the court is unable to determine whether the witness is mentally or morally unreliable. It is all-sufficient, in legal contemplation, that the evidence is unsatisfactory and insufficient, and the court is not called upon to determine whether the witness testifies falsely, or is mentally incapable of giving correct testimony. In either event the result is the same,—the case is not proved. In Pennsylvania it is expressly held that the accuracy of the witness is always material. Derk v. Railroad Co., 164 Pa. 243, 30 Atl. 231.
There is some apparent conflict in the cases whether mere interest in the result is sufficient to justify the court or jury in finding against the evidence of the witness, when uncontradicted or otherwise unimpeached, and his testimony is clear, reasonable, and inherently probable. In Honegger v. Wettstein, 94 N. Y. 261, mere interest of the witness was held sufficient to send the question of the credibility of the witness to the jury, and justify a finding either way. There are other cases to the same effect. See cases cited in Munoz v. Wilson, 111 N. Y. 300, 18 N. E. 855. In Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102, the court held:
“The rule that the credibility of a witness who is a party to the actions must be submitted to the jury is not an absolute and inflexible one, and where his evidence is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and is not improbable, nor in its nature surprising or suspicious, there is no reason for denying to it conclusiveness.”
See, also, Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109.
May not the evidence of a party be as effectually contradicted by indirect evidence or circumstances as by direct evidence ?
[463] In Kavanagh v. Wilson, 70 N. Y. 177, the witness, while not a party, was pecuniarily interested in the result, and “other circumstances rendered the statement of the witness not entirely free from improbability.”
This court cannot assent to the proposition that in one of these cases a witness for the person sought to be deported is interested merely because he is a Chinese person. Such a rule would make most witnesses in a court of justice interested witnesses, and, if interest alone justifies the court in refusing credence to the testimony of a witness, then many in every trial would be more or less discredited by reason of mere national kinship, and the court or jury, as the case might be, would be at liberty to refuse to be bound by their testimony when testifying in favor of a party of their own nationality. There is no rule of law that justifies the assumption that a Chinese person is more interested in his countrymen than is a person of some other nationality in his. A Yankee may testify for a Yankee, but he is not therefore interested. An Irishman may testify for an Irishman, an Englishman for an Englishman, a German for a German; but such witnesses are not, in the eye of the law, interested. No discredit can legally attach to the testimony of a person because he gives his evidence in behalf of a party belonging to his own nationality. A Chinese witness in one of these cases, if engaged in securing the entrance of Chinese persons into the United States, is open to suspicion; and if he is engaged in aiding the entrance of such a person, and gives evidence in that behalf, he is interested, and such fact legitimately tends to discredit his testimony. We are all brothers in the family of Adam,—all brothers in the national family to which by birth or adoption we belong,—but these ties of race or color Eo not make us interested witnesses when we testify in court, within the rule that permits interest to be used as a discrediting circumstance. If it affirmatively appears that a witness has a bias in favor of persons of his own nationality, in whose behalf he is testifying, or against the other party to the litigation, or a bias in favor of persons of his own nationality generally, or against those of another nationality, such fact may be used to discredit his testimony. Such facts may be considered by the court and jury, but we cannot assume or presume the existence of such a bias either in favor of persons of the same nationality, or against persons of another nationality. The one assumption is as unjust and ill-founded as the other. It is quite true, however, that the testimony of foreigners and of others who are brought from a distance to the place of trial requires to be scrutinized with more than common caution. The tribunal before which they speak knows little of them, and they care little for it, and may have no respect for the laws of the country in which they are giving evidence. They have little to fear from having their falsehoods exposed, as there is little danger of conviction of perjury, and they lose nothing in reputation among their fellows. In our courts a witness who does not understand or who cannot speak our language, but who speaks through an interpreter, if at all, has the time and opportunity to prepare his [464] answers to each' question with care, and hence the force of a cross-examination is broken, if not destroyed. So, too, it is common knowledge that enslaved peoples develop an inordinate propensity for lying, and this is characteristic of most oriental nations. This comes largely from their being subject to the caprice and exactions of their masters or superiors, and, having no sense of moral responsibility to them, they come to regard lying to them as no sin, and an habitual disregard of the truth is thus engendered. See 1 Tayl. Ev. (Ed. 1897, Am: Notes) §§ 53, 56. See, also, Chae Chan Ping v. U. S., 130 U. S., 598, 9 Sup. Ct. 623, 32 L. Ed. 1068, and 149 U. S., 730, 13 Sup. Ct. 1016, 37 L. Ed. 905. Hence in all these Chinese exclusion cases the testimony of Chinese witnesses, unknown and coming from a distance, —especially that of foreigners,—may be regarded as more or less weak; and, when contradicted or really impeached in any of the modes suggested and recognized by our law, the commissioner is justified in regarding such testimony, standing alone, as insufficient to convince the judicial mind. This conclusion must not be reached arbitrarily or capriciously or from prejudice, but from conviction, that the case is not made out; and in such cases the appellate court or judge is not justified in reversing the finding of the tribunal which had the opportunity of observing the witness, and noting his manner and sincerity or want of sincerity in giving testimony. It is true that an intelligent and experienced judge often detects the falsehood of a witness who tells a story which, reduced to writing, reads smooth as the Psalms of David. The rule is now settled in England, the state of New York, and in the courts of the United States, that the evidence must be of “such -a character” as to support a finding in favor of the party introducing it, and upon whom the burden of proof rests. A mere scintilla of evidence no longer suffices. Commissioners v. Clark, 94 U. S., 284, 24 L. Ed. 59; Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780; Ryder v. Wombwell, L. R. 4 Exch. 39. It follows that “some evidence,” merély, unless it be in a legal sense satisfactory and convincing to the ordinary mind, when uncontradicted and unimpeached, fails to establish thé case so as to demand or justify a judgment in favor of the party introducing it. The testimony contained in these records, respectively, is either contradicted by evidence of equal or greater weight, inherently improbable, or so weak, unsatisfactory, and contradictory as to fail to establish the right of the defendants to remain in the United States.
A full and careful examination and consideration of all the evidence in each of the cases now before the court fails to disclose any ground of reversal in either case, and hence the judgments of deportation must be affirmed.