On Appeal. Los Angeles Times, Jun 27, 1893
( See Jul 4, 1893)
On Appeal. The Wong Dip Ken Case in the District Court.
Nice Questions Raised on Appellate Jurisdiction.
Continued Hearing to be Had on Friday Morning.
A.B. Hotchkiss, Esq., Appears for the Defense and United States District
Attorney Denis Represents the People.
That the Congressional act of 1892, better known as the Geary Exclusion Law, has worked an entire change in the rules of evidence and practice in the judicial methods of procedure under sections embodied in it, was a question of dispute in the United States District Court yesterday when the case of the People vs. Dip Ken came up on an appeal from the decision of the Commissioner finding that the defendant was an unlawful resident of Untied States territory, and ordering that he be deported after two days' imprisonment in the County Jail.
On June 16 the Chinaman, who is a cigar maker by trade, was brought before Commissioner Van Dyke, after having been arrested on a warrant regularly issued, the complaint charging that he was guilty of violation of existing laws in the Geary act and under section 3 of that measure, which reads: "That any Chinese person or persons of Chinese descent shall be adjudged to be unlawful 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. Judgement was entered against him in accordance with the prescribed conditions. Then a notice of appeal was filed through A.B. Hotchkiss and Frank Thomas, Esqs., counsel for defendant, and this brought the matter before Judge Ross yesterday afternoon.
The case had hardly been called yesterday afternoon before United States District Attorney Denis was on his feet with a motion to dismiss the proceedings of an appeal on the grounds that it was asked for under section 13 of the law of 1888 which, it was admitted, provided that an appeal might be taken in similar cases, but such provision had been practically annulled by the Geary law in itself further, while the Congressional act of September 13, 1888, made provision for an appeal, the treaties also therein provided for had never been ratified by both governments, and the act, in his opinion, was, therefore, ineffective. Section 13 of that act provided that the appeal could be taken to the district judge, and some lawyers held that even if the rest of the act was inoperative this section would remain in effect. But all of the act referred to was of a date prior to the passage of the Geary law. The latter superseded all laws as to procedure and took the place of former acts, an d prescribed the mode of their enforcement, and fixed the kind and degree of punishment. The motion to dismiss the appeal was, therefore, offered.
Judge Ross here inquired whether or not the man had been convicted under the jaw if 1888 to which the District Attorney replied that he had not, but rather section 4, the registration clause, by the Attorney-General. "
Mr. Hotchkiss then claimed the attention of the Court in offering objections to the granting go the motion. He reviewed briefly the proceedings held before the Commissioner, which resulted in the conviction of the defendant, and then enlarged upon the merits of the cause from the standpoint of the defense, quoting numerous authorities in support of his comprehensive argument. He believed that when the Geary law was passed that it was not the intention that there should be no appeal from decisions found thereunder.A provision for appeal had been previously provided, and it was not necessary that the act of 1888 should be ratified by the two governments to make its conditions binding. In the Geary law there was no repealing provision, there was nothing in it that was in conflict with the view that the appeal should be the available remedy.
District Attorney Denis stated then that any decision offered as authority rendered previous to the passage of the act of 1892 relative to particular points, could hardly be considered as competent. The rule of evidence had been radically changed by the Geary law, while the offense itself was not defined. The court never had, appellate jurisdiction, and it was evidently not the intention of the act that it should be turned into a justice's court. As to the rule of evidence, it was required that the defendant furnish affirmative proof that he was lawfully entitled to remain in the United States, failing in which judgement should be pronounced. On the question of constitutionality, he was not prepared to argue, and asked that further time be granted to discuss this point.
The judge then ordered that he be handed authorities by both counsel for consideration, and that court be adjourned until Friday morning at 10 o'clock.
Before an adjournment was taken, however, Mr. Hotchkiss raised the question of bail, and requested that the defendant be admitted to such in a reasonable amount.
Mr. Denis said that he had no desire to keep the Chinaman in jail pending a decision on the point involved, whereupon the Court remarked: "I am not prepared to pass upon the question of bail at present, but by consent of counsel the defendant will be released upon the filing of an acceptable bond for $1000."
Should the decision in this, the test case, be adverse to the defendant, and the ruling set up that there shall be no appeal from the judgment rendered in like cases, the result will undoubtedly have the effect of causing the arrest of many more Celestials under the same charge as Ken was convicted. There will be resort to have as corpus proceedings even then, but the United States District Attorney has declared that he will not countenance the making of arrests until the ground is fully established upon which the people may proceed.
(Back to 1893)