WONG HEUNG v. ELLIOTT, U. S. Marshal.

(Circuit Court of Appeals, Ninth Circuit. May 9, 1910.)

No. 1,791.

1. HABEAS CORPUS (§ 113*)-REVIEW-FINDINGS OF FACT.

On appeal in a habeas corpus case for the discharge of a Chinese person held for deportation, the findings of the lower court are not conclusive, and all questions of fact on the evidence are open to consideration by the appellate court; but such findings should not be set aside. unless the evidence in the record is such as to convince the court that they are erroneous.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.*]

2. ALIENS (8 32*)-DEPORTATION OF CHINESE-FRAudulent Marriage of WoMAN TO EVade Judgment of DEPORTATION.

Evidence considered, and held to sustain a finding that the marriage of a Chinese woman, after a judgment of deportation against her, and while at large on bail pending an appeal, to a native-born citizen of the United States, was not in good faith, but a mere sham, pretense, and form, for the purpose of evading the judgment of deportation.

[Ed. Note. For other cases, see Aliens, Dec. Dig. § 32.*

Citizenship of Chinese persons, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]

Appeal from the Circuit Court of the United States for the Northern District of California.

Proceeding by Mrs. Wong Heung against C. T. Elliott, United States Marshal for the Northern District of California for a writ of habeas corpus. From an order denying the writ, petitioner appeals. Affirmed.

On August 1, 1907, Wong Chun was arrested, charged with violation of the act of Congress entitled "An act to prohibit the coming of Chinese persons into the United States," approved May 5, 1892 (Act May 5, 1892, c. 60, 27 Stat. 25), and the act amendatory thereof, approved November 3, 1893 (Act Nov. 3, 1893, c. 14, 28 Stat. 7 [U. S. Comp. St. 1901, p. 1320]), and the act approved April 29, 1902 (Act April 29, 1902, c. 641, 32 Stat. 176 [U. S. Comp. St. Supp. 1909, p. 473]). On September 27, 1907, after a hearing before a United States commissioner, she was ordered deported from the United States to China. On February 7, 1908, after a hearing on her appeal; and further evidence adduced in support thereof, the judgment of the commissioner was affirmed. On July 7, 1909, in compliance with said judgment, Wong Chun was taken into custody by the United States marshal for the purpose of deportation, and the following day, under the name of Mrs. Wong Heung, she filed a petition in the court below for a writ of habeas corpus, alleging that on October 28, 1908, pending her appeal to this court from the judgment of the district Court, she had been united in marriage to Wong Heung in the city of Oakland, state of California; that Wong Heung was a native-born citizen of the United States; and that by virtue of said marriage her status had been changed, and she was entitled to be discharged from custody. Upon the hearing on the order to show cause why the writ should not issue, the court below, upon the evidence, found that the marriage of the petitioner to Wong Heung was not entered into in good faith, but was a mere sham, pretense, and form, and had been entered into between the petitioner and Wong Heung solely for the purpose and with the intent of evading the effect of the findings, judgment, and order of deportation, and to enable the petitioner to remain within the United States, notwithstanding said order. From that judgment the petitioner appeals.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

McGowan & Worley and Louis P. Boardman, for appellant.

Robt. T. Devlin, U. S. Atty., and Benjamin L. McKinley, Asst. U. S. Atty., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). As this is a case of habeas corpus, all questions of fact upon the evidence are open to consideration on the appeal, and the findings of the court below are not conclusive upon us, as they would be on a judgment of deportation. Johnson v. Sayre, 158 U. S. 109, 15 Sup. Ct. 773, 39 L. Ed. 914. The finding, however, should not be set aside, unless the evidence in the record is such as to convince this court that it was erroneous. Quock Ting v. United States, 140 U. S. 417, 11 Sup. Ct. 733, 851, 35 L. Ed. 501. Upon a careful consideration of the testimony, we are not convinced that the court below erred in finding that the marriage was not entered into in good faith, and that it was a mere sham, pretense, and form for the purpose of evading the judgment of deportation.

There are many circumstances and features of the testimony to support that conclusion. Wong Heung testified to the marriage; but he did not testify that it had been followed by cohabitation. Although he denied that he was aware of the judgment of deportation before the marriage, his conduct, as detailed by himself, points to the conclusion that he knew it, and that he, or the person who planned the scheme, deemed it necessary to observe some degree of secrecy. He and the appellant were at that time residents of San Francisco, but he took the appellant to Oakland to be married. The reason why he did so, he first testified, was that he particularly desired to secure the services of the interpreter there with whom he was acquainted. But he admitted that there was no difficulty in obtaining interpreters in San Francisco. But later, on being interrogated by the court, he said that the reason why he went to Oakland to get married was that it was because he knew a lawyer over there, a Mr. Walsh, and that he wanted the lawyer as a witness. But he admitted that he knew that any witness would do as well. Jee Cam, the interpreter, testified that he was present at the marriage ceremony in pursuance of a request which Mr. Walsh sent him, and that before the marriage ceremony he never had seen either of the contracting parties. Mr. Walsh did not deny that he sent for the interpreter; but the reading of his testimony conveys the impression that the interpreter was present, not at his instance, but at the instance of Wong Heung.

The appellant testified that she first met Wong Heung about a month before the marriage; that she was then living on Dupont street; and from her testimony, and from her refusal to answer certain questions, it is fairly inferable that she was then engaged in the occupation of a prostitute, as she had been engaged at the time of her arrest for deportation. She testified that she made the proposal of marriage to Wong Heung, but that she did not know why she was taken to Oakland to be married. She testified that since the marriage she had lived with Wong Heung on Sacramento street, San Francisco; but she did

not mention the place of their residence. It requires credulity to believe that Wong Heung married the appellant in ignorance of the fact that she was under judgment of deportation. Wong Heung was himself a Chinese laborer, a laundryman, and he testified that sometimes he worked and sometimes he did not. It does not appear that he had any fixed place of abode; but it does appear that he had been in trouble, charged with breaches of the law. Among the badges of fraud is the fact that Wong Heung found it necessary to attach to the marriage license and certificate of marriage photographs of himself and the appellant. Another is that, in applying for the marriage license, he falsely stated that he and the appellant were residents of Oakland. It is evident, we think, that the appellant took advantage of her admission to bail to return to her former occupation, and that by going through the form of a marriage to a citizen of the United States, pending her appeal to this court, she, or more probably, some other person, whose mind conceived the design, hoped to oppose an effectual bar to deportation in case the judgment of this court should be adverse to her. The judgment is affirmed.

HALLIGAN, Warden, v. WAYNE.

Ex parte WAYNE.

(Circuit Court of Appeals, Ninth Circuit. May 9, 1910.)

No. 1,785.

CRIMINAL LAW (§ 984*)-SENTENCE ON CONVICTION ON DIFFERENT COUNTSINDICTMENT CHARGING BURGLARY AND LARCENY,

One accused of burglary with intent to commit larceny may in a second count of the same indictment be charged with the larceny, and on such an indictment may be convicted and punished for either offense, but not for both; and where there is a general verdict of guilty he may be sentenced for the burglary only.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 25042508; Dec. Dig. § 984.*]

Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.

Petition by Frank Wayne against O. P. Halligan, Warden of the United States Penitentiary on McNeil's Island, Wash., for a writ of habeas corpus. From an order allowing the writ, defendant appeals. Affirmed.

The appellee was indicted in the District Court of the United States for the District of Oregon under five counts. The first count charged burglary, in that he broke into and entered a United States post office with intent to commit larceny therein, by stealing and taking away postage stamps and moneys of the United States; the second count charged him with the larceny of postage stamps of the value of $22, committed on the same date and in the same post office; the third count charged him with the larceny of $3 on the same date from the same post office; the fourth charged him with receiving, concealing, and retaining in his possession, with intent to convert to his own use, the postage stamps, of the value of $22, which he had already feloniously taken from the said post office; and the fifth count contained a For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

like charge of receiving, concealing, and retaining in his possession, with intent to convert to his own use, the said sum of $3 alleged to have been stoien from the post office. Upon his plea of guilty to the indictment, he was sentenced to be imprisoned for the term of three years for the offense charged in the first count, for a further term of two years for the offense charged in the second count, for the term of two years for the offense charged in the third count, for the term of one year for the offense charged in the fourth count, and for the term of one year for that which was charged in the fifth count. After having served the three-year sentence imposed under the first count, the appellee filed his petition in the District Court of the United States for the Western District of Washington, in which district he was confined, praying for a writ of habeas corpus, and for his discharge from the imprisonment. Upon the hearing on an order to show cause, the writ was allowed, and the appellee was discharged. The appeal raises the question whether the appellee could lawfully be sentenced separately for the burglary and the larceny charged in the indictment.

Elmer E. Todd, U. S. Atty., for appellant.

R. L. Blewett and D. V. Halverstadt, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). It is well settled, except in jurisdictions where it is otherwise provided by statute, that one accused of burglary with intent to commit larceny may, in a second count, be charged with the larceny. It is also well settled that upon such an indictment the accused may be convicted of either of the offenses charged. But the question which the case now before us presents is whether one thus accused of burglary and larceny may be convicted and punished for both offenses. Upon this proposition there is conflict of authority. In Ex parte Peters (C. C.) 12 Fed. 461, it was said:

"According to the great weight of authority, it may be regarded as settled that a person who breaks and enters a house with intent to steal therefrom, and actually steals, may be punished under separate indictments for two offenses or one, at the election of the power prosecuting him."

And the court cited Josslyn v. Commonwealth, 6 Metc. (Mass.) 236, State v. Ridley, 48 Iowa, 370, Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, and Wilson v. State, 24 Conn. 57.

On examining those cases it will be found that none but the last fully sustains the doctrine so announced. In Josslyn v. Commonwealth, Chief Justice Shaw said that, where burglary and larceny "are averred in distinct counts as distinct substantive offenses not alleged to have been committed at the same time, and as one continued act, *** the defendant may be convicted on both, and a judgment rendered founded on both." The inference from this language is that, if the offenses were alleged to have been committed at the same time, but one crime would be charged, and but one penalty could be imposed. That this is so is made clear by the opinion of the same judge in Kite v. Commonwealth, 11 Metc. (Mass.) 581, where he said:

"If the larceny charged in the second count appears, in proof, to have been committed at the time of the breaking and entering, then it is merged, and the conviction is properly for burglary, and the sentence must be accordingly. But if a breaking and entering with intent to steal be proved, and a different larceny done at a different time be also proved, then the sentence may properly be awarded as for both offenses."

179 F.-8

State v. Ridley is authority only for the proposition that under an indictment charging three offenses, as burglary, larceny in a store in the nighttime, and simple larceny, a verdict of guilty might be found upon any one of the crimes so charged. In Breese v. State, it was held that a count charging burglary might be united in an indictment with a count charging larceny, and that on a general verdict of guilty on such a count the accused might be sentenced for the burglary, but not for the larceny, and that upon a verdict of guilty of the burglary as charged the court might legally proceed to sentence for that crime, without waiting a response to the charge of larceny.

In line with the doctrine of Ex parte Peters, however, are Speers v. Commonwealth, 17 Grat. (Va.) 570, Wilson v. State, 24 Conn. 57, State v. Warner, 14 Ind. 572, and Dodd v. State, 33 Ark. 517. In Bishop's New Criminal Law, § 1062, the doctrine of the decisions last cited is declared to be in accordance with the weight of authority; but the author adds, adopting the language of the dissenting opinion of Waite, C. J., in Wilson v. State:

"Still to make a burglary thus double, and punish it twice, first as burglary and secondly as larceny, hardly accords with the humane policy of our law, and we have cases which refuse this double punishment. They proceed on the highly reasonable ground that where a criminal act has been committed, every part of which may be alleged in a single count in an indictment and proved under it, the act cannot be split into several distinct crimes, and a several indictment sustained upon each."

In 3 Enc. of Pl. & Pr. 785, it is said:

"But the verdict and the conviction in such a case cannot be for both the burglary and the larceny, though they may be for either offense singly. When both offenses are united in one indictment, it is permissible to convict for either offense without the other."

On page 791 the same authority says:

"But there cannot be a conviction for both offenses. There may, however, under such an indictment, be found a general verdict of guilty; but on this verdict there can be but one sentence, that for the burglary alone, and not for both burglary and larceny."

These views are, we think, sustained by the weight of reason and authority. State v. McClung, 35 W. Va. 280, 13 S. E. 654; Yarborough v. State, 86 Ga. 396, 12 S. E. 650; Commonwealth v. Birdsall, 69 Pa. 482, 8 Am. Rep. 283; Roberts v. State, 55 Miss. 421; Triplett v. Commonwealth, 84 Ky. 193, 1 S. W. 84, 8 Ky. Law Rep. 67; Lyons v. People, 68 Ill. 271; Jennings v. Commonwealth, 105 Mass. 586; Commonwealth v. Lowery, 149 Mass. 67, 20 N. E. 697; State v. Nicholls, 37 La. Ann. 779; Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340.

The judgment is affirmed.