EVIDENCE.

Uncontradicted evidence of interested witnesses to an improbable 1 fact does not require judgment to be rendered accordingly.

Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by anyone, 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 statement, although there be no adverse verbal testimony adduced.-—(Quock Ting v. United States, 140 U. S., 417; Sup. Ct., May 11, 1891.)

The requirement of the Chinese-exclusion acts not allowing the fact of residence in the United States at the time of the passage of the registration act to be proved solely by Chinese testimony, but requiring the testimony of a white witness, is constitutional.-(Fong Yue Ting v. U. S., 149 U. S., 698; Sup. Ct., May 15, 1893. Li Sing v. U. S., 180 U. S., 486; Sup. Ct., Mar. 18, 1901.)

The decision of the administrative officer at the port of entry, admitting a Chinese person upon a certificate furnished him by a consular officer of the Chinese Empire located in the United States, stating the holder's right to reenter after temporary absence as a wholesale grocer, was not final as to the right of such person to remain in the United States, he being a laborer, under the act of August 18, 1894.— (Li Sing v. U. S., 180 U. S., 486; Sup. Ct., Mar. 18, 1901.)

When a Chinese laborer has evaded the executive jurisdiction on the frontier and gained access to the country he should not be considered entitled to demand repeated rehearings on the facts.-(Chin Bak Kan v. U. S., 186 U. S., 193; Sup. Ct., June 2, 1902.)

In a proceeding for the deportation of a Chinese person the certificate of a United States commissioner that defendant has been adjudged by said commissioner to be lawfully in the United States is inadmissible as evidence of his present status, not being a certified. copy of such adjudication, but a mere recital that such judgment has been rendered.-(Lew Guey v. U. S., 193 U. S., 65; Sup. Ct., Feb. 23, 1904. U. S. v. Lew Poy Dew, 119 F. R., 786; Dist. Ct., Feb. 23, 1904.)

Upon appeal, the record of the commissioner before whom the Chinese defendants were originally tried showing that "the proofs furnished in this case are sufficient to show that these three persons were engaged in business rather than in manual labor in 1894," it was error for the district court to affirm the commissioner's order of deportation of the Chinese persons who had been found engaged as

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laborers in the United States without laborers' certificates of residence.-(Tom Hong v. U. S., 193 U. S., 517; Sup. Ct., Mar. 21, 1904.) When, in deportation proceedings, the Chinese defendants claimed they were merchants during the registration period, the fact that the Government has allowed many years to elapse before instituting proceedings will excuse the failure of the defendants to produce books of accounts and articles of partnership as evidence of their claimed status.-(Ibid.)

Where a Chinese person is found in the United States and is arrested, but not on view of his entry into this country, he can not be removed unless there is evidence showing that he is unlawfully in this country. (In re Mah Wong Gee et al., 47 F. R., 433; Dist. Ct., Sept. 7, 1891.)

In proceedings for the deportation of a Chinese person, evidence of the contents of a ship list of Chinese passengers is inadmissible unless the list is shown to be authoritative and a certified copy produced containing the name of the defendant as a passenger.-(United States v. Long Hop, 55 F. R., 58; Dist. Ct., Feb. 8, 1892.)

Under section 6 of the exclusion act of May 5, 1892, a Chinese person arrested for failure to register must be deported if he has no certificate, unless he can show one of the excuses for failure to procure the certificate enumerated in said section, and notwithstanding the fact that he does show a residence in the United States for the period required thereby.--(In re Ny Look, 56 F. R., 81; Cir. Ct., May 26, 1893.)

A stipulation in proceeding for the deportation of a Chinese person that "up to the 1st of August, 1893, the defendant was a merchant," does not by implication admit that he was such after that date.--(United States v. Wong Hong, 71 F. R., 283; Dist. Ct., Dec. 2, 1895.) 6 A Chinese person who is shown by uncontradicted evidence to be entitled to remain in the United States can not be deported because of his refusal to be sworn to testify at the request of the prosecution.-(Ex parte Sing, 82 F. R., 22; Cir. Ct., July 12, 1897.)

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The provision of the act of May 5, 1892, section 6, as amended by act of November 3, 1893, that any Chinese laborer found within the jurisdiction of the United States without the certificate of residence required by that act shall be ordered deported unless he shall establish that by reason of accident, sickness, or other unavoidable cause he was unable to procure his certificate, and, by at least one credible witness other than Chinese, that he was a resident of the United States on May 5, 1892, leaves no room for construction and gives the judge before whom such person is brought no discretion to accept any other testimony concerning his residence than that prescribed. (U. S. v. Williams, 83 F. R., 997; Dist. Ct., Dec. 8, 1897.)

The power of Congress to prescribe rules of evidence in proceedings for the deportation of Chinese aliens is included within its general authority to exclude aliens or to prescribe the conditions upon which they may remain in the United States.-(United States v. Williams, 83 F R., 997; Dist. Ct., Dec. 8, 1897.)

Where, in a deportation proceeding, the defendant presents a certificate of identity as a "merchant" of China, which certificate is in due form, it appears that upon his arrival he immediately proceeds to and continues in the employment of a laborer, such fact has a

strong retroactive bearing as evidence of the intent with which such Chinaman came to this country, for he may enter under the certificate only for the purpose of prosecuting his business as a merchant.(United States v. Yong Yew, 83 F. R., 832; Dist. Ct., Nov. 23, 1897.) It is as much a violation of the Chinese exclusion acts for a laborer 1 who by any trick or evasion secures an entry to our ports to remain in the United States as it would have been to originally land on our shores.-(U. S. v. Yong Yew, 83 F. R., 832; Dist. Ct., Nov. 23, 1897.) While, in all cases of Chinese entering the United States, and in 2 the case of laborers residing within the country when the acts requiring registration were passed, the official certificate is indispensable and constitutes the sole evidence of the right to enter or remain, in all other cases the status of the Chinese person at the time of arrest and trial may be shown by any affirmative proof satisfactory to the judge, justice, or commissioner before whom he is tried.-(United States v. Chu Chee et al., 85 F. R., 312; Dist. Ct., May 6, 1898.)

A Chinese person who entered the United States without the certificate prescribed by section 6 of the act of July 5, 1884, can not, when arrested under the act of May 5, 1892, establish a right to remain here by proof that since his arrival his occupation has been solely that of a member of the privileged classes.-(United States v. Chu Chee et al., 93 F. R., 797; C. C. A., Mar. 6, 1899.)

In proceedings for the deportation of a Chinese person where the issue is the citizenship of such person, his private letters procured by officers who opened the envelopes in violation of the fourth and fifth amendments to the Constitution, providing against unreasonable seizures, can not be used by the Government against the defendant.(United States v. Wong Quong Wong, 94 F. R., 832. United States v. Wong Chin Shuen, Dist. Ct., June 1, 1899.)

The action of a government official in allowing a Chinese person to land in the United States without presenting the certificate required by section 6 of the act of July 5, 1884, is not even prima facie evidence that such person is lawfully resident in this country.(Mar Bing Guey v. United States, 97 F. R., 576; Dist. Ct., Nov. 1, 1899.)

The requirements that the mercantile character of a Chinese person who is seeking to reenter the United States after temporary absence must be shown by two witnesses other than Chinese is a special rule of evidence and does not apply to other issues arising in the cases of Chinese persons, such as a claim of American nativity, which other issues are to be determined by the ordinary rules of evidence.(United States v. Lee Seick, 100 F. R., 398; C. C. A., Feb. 5, 1900.) In proceedings for the deportation of a Chinese person charged with having unlawfully entered the United States, it is error to admit any evidence of the right of the defendant to enter except the certificate issued by the Chinese Government, which is made by section 6 of the act of July 5, 1884, the sole evidence of such right.(United States v. Pin Kwan, 100 F. R., 609; C. C. A., Feb. 28, 1900.) If it is found that a Chinese person under arrest for deportation is in possession of a certificate of residence, it is error to hold that he is deportable on the mere ground that the certificate was procured by fraud, it not appearing that the defendant had since the issuance of the certificate forfeited his right to remain in the United States by

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departing without procuring a return certificate.-(In re See Ho How, 101 F. R., 115; Dist. Ct., Apr. 12, 1900.)

Where a Chinese person is shown to have been a member of a firm of merchants in this country for seven years, with $1,000 invested as his share of the capital, the fact that he has lately visited China and returned, nothing being shown as to the manner of his reentry, does not warrant his arrest and deportation.-(United States v. Wong Lung, 103 F. R., 794; Dist. Ct., May 4, 1900.)

When a Chinaman arrested for deportation on the ground of unlawful residence claims to be a merchant, he must affirmatively show a fixed place of business and such frequent sales of merchandise as entitles him to be considered a merchant within the ordinary meaning of the term, or an actual and substantial interest in some firm of such merchants. (United States v. Lung Hong, 105 F. R., 188; Dist. Ct., May 5, 1900.)

It is not reversible error for a court to refuse to permit a party to introduce evidence of the general good character of his own witnesses, who are Chinese persons, where there has been no attempt to impeach their character.-(Woey Ho v. United States, 109 F. R., 888; C. C. A., May 13, 1901.)

The question of credibility of witnesses must ordinarily rest with the trial court, which is necessarily invested with a large discretion. in that matter; and the fact that a court in a habeas corpus proceeding for the discharge of a Chinese person held for deportation refuses to accept and act upon the testimony of Chinese witnesses, though uncontradicted and though the witnesses are not impeached, is not in itself ground for reversal.—(Ibid.)

The fact that during the six months succeeding the passage of the act of November 3, 1893, Chinese persons were merchants and therefore not required to register, would not be conclusive evidence of their present right to remain in the United States, when it appeared that they afterwards left the country, disposing of whatever business that they had possessed during the said six months, and then returned and engaged in the occupation of laborer.-(United States v. Moy Yim, 115 F. R., 652; Dist. Ct., Apr. 29, 1902.)

6 Where, in proceedings for the deportation of a Chinese woman, she testified and presented other evidence to prove that she was born in the United States, the judgment of the commissioner should not be set aside although such evidence was practically uncontradicted, there being circumstances which tended to impeach her testimony, and inconsistencies in the evidence which might well cause its truth to be doubted.-(Lee Ah Yin v. United States, 116 F. R., 614; C. C. A., May 19, 1902.)

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Upon the issue as to the citizenship of a person of Chinese descent, evidence from a male person, not the father, that the defendant was born at a certain time and place in the United States, unaccompanied by any details as to how or why the witness knows such fact, is not conclusive on the commissioner or court.-(United States v. Lee Huen, 118 F. R., 442; Dist. Ct., Oct. 6, 1902.)

The credibility of a witness may be affected by circumstances or by his own testimony, as well as by contradictory evidence; and the improbability of his statements, or his apparent lack of memory, accuracy, or intelligence, as well as his apparent lack of truthful

ness, may justify a refusal to accept his testimony as satisfactory, even though uncontradicted.-(Ibid.)

The mere fact that a witness for the defendant in a proceeding for deportation is himself a Chinese person does not render him an interested witness, within the rule which permits interest to be considered as a discrediting circumstance.-(Ibid.)

If in proceedings for the deportation of Chinese aliens under the exclusion act the defendants fail to give testimony in their own behalf to explain doubtful matters peculiarly within their own knowledge or to contradict testimony given against them, such failure may be considered where the testimony is contradictory.—(Ibid.)

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In proceedings under the Chinese-exclusion act, the testimony of 3 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 discredited in any of the modes recognized by our law, the commissioner is justified in regarding it as insufficient, standing alone, to convince the judicial mind, where he acts from a fair conviction that the case is not made out; and in such case the appellate court is not warranted in reversing his finding.(United States v. Lee Huen, 118 F. R., 442; Dist. Ct., Oct. 6, 1902.)

The provision of section 3 of the Chinese-exclusion act of May 5, 1892, which places the burden on a Chinese person or person of Chinese descent arrested thereunder to "establish by affirmative proof, to the satisfaction of the justice, judge, or commissioner, his lawful right to remain in the United States," requires him to produce credible evidence sufficient to satisfy the judgment of a reasonable man, considering the same fairly and impartially. A commissioner may not, arbitrarily, capriciously, or against reasonable, unimpeached, and credible evidence, which is uncontradicted in its material points, and susceptible of but one fair construction, refuse to be satisfied; but, on the other hand, he is not bound to be satisfied by the testimony of a single witness as to facts which, if the testimony is true, must necessarily be known to other obtainable witnesses who are not produced.-(Ibid.)

Whether a person arrested for violating the exclusion act is a 5 Chinese person should be proved by experts competent to testify as to the accused's racial characteristics.-(United States v. Hung Chang, 126 F. R., 400; Dist. Ct., Dec. 17, 1903. Reversed, 134 Fed., 19.)

Mere expressions of opinion by a Chinese person as to his nationality are inadmissible to establish such nationality; and a Chinese person can not be compelled to testify as to his nationality.-(Ibid. Reversed, 134 Fed., 19.)

It was error to expel Chinese persons because they refused to testify in their own behalf, when they had produced a witness who gave testimony, not contradicted, impeached, or discredited in any manner, that said persons were born in the State of California. (United States v. Leung Shue et al., 126 F. R., 423; Dist. Ct., Dec. 18, 1903.)

In proceedings for the deportation of a Chinese person the fact that the defendant was engaged as a merchant in the United States at the time of the passage of the registration act of May 5, 1892, may

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