Yee Et (Ep) v. United States

Fifth Circuit

Yee Et (Ep) v. United States

222 F. 66, 137 C.C.A. 537, 1915 U.S. App. LEXIS 1428

Court of Appeals for the Fifth Circuit·Decided April 23, 1915·No. Nos. 2554, 2601, 2602-2605, 2607, 2609, 2611, 2612, 2614, 2615, 2618, 2619, 2621, 2622, 2623, 2641·Published·Cited by 2 cases

Opinion

FOSTER, District Judge.

In these 16 cases the appellants were arrested in El Paso on complaint before a United States commission[67] er, charging them with being Chinese laborers and unlawfully in the United States in violation of the Chinese Exclusion Laws. The commissioner ordered them deported to China, and, on appeal, his orders were affirmed by the District Court. No reversible errors of law are presented, and substantially only questions of fact are presented by the records.

[1] The rule may be considered settled that in matters of this kind, where; the commissioner sees and hears the witnesses, the accused is not entitled to repeated appeals on the facts, and a judgment of the District Court affirming the commissioner will not be disturbed, except in a perfectly clear case or for error of law. Chin Bak Kan v. United States, 186 U. S. 193, 22 Sup. Ct. 891, 46 L. Ed. 1121; Yee King et al. v. United States, 179 Fed. 369, 102 C. C. A. 646; Eng Choy v. United States, 175 Fed. 566, 99 C. C. A. 188; Moy Guey Lum v. United States, 211 Fed. 91, 127 C. C. A. 515; Chew Hing v. United States, 133 Fed. 227, 66 C. C. A. 281.

[2] In most of these cases the testimony was taken under commission by interrogatories, no representative of the government was present, and the identification of the accused was by photograph. Manifestly, evidence of this character is unsatisfactory, and where the witnesses are present in the same city as the accused and the commissioner before, whom the complaint is pending, and could have testified in open court, such evidence is not above suspicion, and is entitled to very little, if any, weight.

As the evidence in every case, even where the witnesses were at a distance, might have been taken on fair notice to the district attorney and by oral examination, we see no reason why the instant cases should be excepted from the rule denying a second appeal on the facts; but, as this court has not heretofore announced its adherence to the said rule, we have examined the record in each case before us.

As we find no errors in the judgments of the District Court, they will be affirmed.

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FOSTER, District Judge.

In these 16 cases the appellants were arrested in El Paso on complaint before a United States commission[67] er, charging them with being Chinese laborers and unlawfully in the United States in violation of the Chinese Exclusion Laws. The commissioner ordered them deported to China, and, on appeal, his orders were affirmed by the District Court. No reversible errors of law are presented, and substantially only questions of fact are presented by the records.

[1] The rule may be considered settled that in matters of this kind, where; the commissioner sees and hears the witnesses, the accused is not entitled to repeated appeals on the facts, and a judgment of the District Court affirming the commissioner will not be disturbed, except in a perfectly clear case or for error of law. Chin Bak Kan v. United States, 186 U. S. 193, 22 Sup. Ct. 891, 46 L. Ed. 1121; Yee King et al. v. United States, 179 Fed. 369, 102 C. C. A. 646; Eng Choy v. United States, 175 Fed. 566, 99 C. C. A. 188; Moy Guey Lum v. United States, 211 Fed. 91, 127 C. C. A. 515; Chew Hing v. United States, 133 Fed. 227, 66 C. C. A. 281.

[2] In most of these cases the testimony was taken under commission by interrogatories, no representative of the government was present, and the identification of the accused was by photograph. Manifestly, evidence of this character is unsatisfactory, and where the witnesses are present in the same city as the accused and the commissioner before, whom the complaint is pending, and could have testified in open court, such evidence is not above suspicion, and is entitled to very little, if any, weight.

As the evidence in every case, even where the witnesses were at a distance, might have been taken on fair notice to the district attorney and by oral examination, we see no reason why the instant cases should be excepted from the rule denying a second appeal on the facts; but, as this court has not heretofore announced its adherence to the said rule, we have examined the record in each case before us.

As we find no errors in the judgments of the District Court, they will be affirmed.

Yee Et (Ep) v. United States, 222 F. 66, 137 C.C.A. 537, 1915 U.S. App. LEXIS 1428 (5th Cir. 1915).

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