The first count is predicated upon see, 5408, R. S, U, 8, as amended by the Act of Mazeh'4, 1909, (Criminal Code, see. 129, 35 Star. 11, 12, 18; U. S.C. A. see, 285), defining' cer~ tain offences, and providing that tone convicted thereof shall be punished by fine and imprisonment, and shall, moreover, forfeit his office and be forever afterwards disqualified from holding any office under [Government of the United States.
Accordingly, the judgment below was that defendant pay a fine and be imprisoned "and be forever hereafter disqualified from holding office funder the Government of the United States." The contention of defen-Jdant is that this was error for the reason that under section 4101 (R. S. U. 8. 3, consular tribunals, and, hence, the' United States Court for fairly read it authorizes jurisdic- ¥POR which he was a seaman. That China, may impose punishment tribunal tion only in a case where the "jurisdiction was defined only by fine.and imprisonment, We by a treaty and by laws substantial- [deem it unnecessary to decide that the offence was committed. Under defendant was a citizen of the time 1y acritical with there we are here question, for as was said in Burton either view, admittedly the requisite considering.
The conviction was v, United States, 208 U. 8, 244, 209, Jurisdictional facts existed here, upon a complaint charging "that where the Judgment continued for defendant as a witness in his John "Martin "Ross, an American similar declaration: The above own behalf freely testified that he seaman, duly and lawfully enrolled words in the concluding part of was born in the United States, and and shipped and doing service asthe judgment, of conviction, do 'The defect in the record, if one #§P 'Bullion'
Iways been a citizen thereof. such seaman on board the American nothing more than disclose or recite "ete. There was what in the opinion of the trial there be, is one of pleading only, and not of fact, and one, it is to be added, which defendant failed to discover until after the filing tne more direct or other averment [court is. th legal effect attending bearing upon his citizenship, and, or following a conviction under the in truth, except only in so far as|statute, They might well hat been his status was affected by the fact omitted from the judgment."
In of the printed brief in this case; that he was a seaman on an Ameri-thet ein tee r ft the ahNl ae tale frat time at the oral arguments the consular tribunal was sustained.
Assuming, without deciding, that said the court: "The position that defendant's construction of the} the petitioner, being a subject of treaty and of the relevant statutes Great Britain, was not within the {is correct, and further that under jurisdiction of the consular court, is the circumstances shown the in- more: plausible, but admits, formation cannot be aided by the think, of a sufficient answer. The evidence we are of the opinion that national character of the petitioner, it, sufficiently discloses jurisdiction. for all the purposes of" consul The introductory language is: jurisdiction, was determinable by Leonard Goodwin Husar, a citizen jis calistament as one of the: crea of the United States of Ameria is of the American ship Bullion, cused by the United States Dis-(As such be was) entitled to the protrict Attorney for China, by this tection and benefits. of all laws information of a crime against the pected: by Congress. on behalf of United States of America, as fol- American seamen, and subject to tioned the defendant was an officer all their obligations and liabilities' averment that at all times men- And again: "The treaty uses the tioned the detenant was an officer term 'Americans' in speaking of of the United States, namely, the thave who may be brought within duly appointed, qualified, and acting the jurisdiction of the consular court. United States District Attorney for offences committed in Japai for China, and that as such officer The "statute designates them hho came into posscasion of the) citizens of the United States," and Volume of evidence referred to, and yet extends the laws of the United feloniously disposed -of it in the States so far as they may be neces-manner particularly described, all] sary to execute the treaty and are of his acts being committed in Suitable to carry the same into China, within the jurisdiction of effect, not only over all citizens of the court, and while he was such the United States in Japan, but altoer. True, there i no express also over all ethers to the extent irement that the United States that the terms of the treaty justify District Attorney for China. aboli ov require be a citizen of the United States.
Nor so far as we have been able to Treaty and Statute Clear discover is there sach-express re-] "Reading the treaty and statute Guirement respecting any other together in view of the purpose de-officer of the United States, except- signed to be accomplished, we are ing only the President and members Satisfied that it was intended by of Congress, (U.S. Const. Art. Il, them to bring within our laws all sec. 1, sub div. 5; Art. I, sec. 3, who are citizens, and also all who, sub div.
3, and sec. 2 sub div. 2); and though not strictly citizens, are by these constitutional provisions were their service equally entitled to the for the apparent purpose not of care and protection of the govern-insuring against alien office holding, ment. It is a canon of interpre-but of requiring American birth in tation to so construe a law or a the one case and prescribed periods treaty.as to give ecect to the object of citizenship in the other two. The designed, and for that purpose all silence of the law is to be attribut- of its provisions must be examined ed to an understanding that onder in the light of attendant and sura republican form of government rounding circumstances.' only citizens may be invested with Unless we are to hold that the the power and charged with the re- allegiance que from a United States that view, and to avoid possible embarrassment we direct that the [clause above quoted from the judgment to stricken therefrom, without prejudice, however, to the question fof the effect of the judgment of conviction upon defendant's enigibility henceforth to hold public office.
Heath's Position as Witness It is next assigned that the trial judge is chargeable with pre-Judieal misconduct in connection with the interrogation upon direct examination of one Heath, called Jas a witness upon behalf of de-fondant, It seems that at the time criminal charges were pond-ting against Heath touching the destruction of the documents. re-{ferred to in the information her fu, He came into court, not voluntarily, but under process of subpoena and apparently pursuant to an understanding with defendant that he was to be asked questions only which would not incriminate him. Upon being asked when he first met one Woodward, he stated that he declined to answer upon the ground that it might ineriminfate him. Thereupon followed a prolonged colloquy, participated in by the court, counsel for the defendant, the witness, and his counsel, all bearing upon' the question of the extent of his privilege.—The circumstances developed to be such that it was clearly proper for, if indeed it was not the duty of the court to explain to the witness the nature and extent of his rights. Several questions were tentatively ut to the witness and finally the court said to him: "I will "me struct you if you answer that [question you are going to open the door to being cross-examined on all those other questions. If you take the witness stand you take the witness stand for all purposes to be examined in Yegard to matters to which you testify." Under all the circumstances, which we do not deem it necessary to detail we
Text read from the printed page and cleaned; old type leaves the occasional error.