(dissenting). The majority opinion seems to me to rest on a misconstruction of the record in the court below. This is not the familiar habeas corpus case, in which the jurisdiction of the court is within very narrow limits. Goon Bon June’s citizenship must be determined under the rules generally applicable in judicial proceedings, except that the burden is by statute put upon him to show his right to be in the United States. On his arrest, there was no hearing before the commissioner. The real trial took place before the court. Goon Bon June testified to the effect that he was told by his parents that he was born in San Francisco, at the corner of Du Pont and Jackson streets; that when about 2 years old he was taken to China, where he stayed until 17 years of age, returning (in 1896) to the United States, via Montreal and St. Albans, where he was arrested and discharged. Two other witnesses testified, and the court below found, that since 1896 the appellee “had been in this country, and had been known as Goon Bon June.” In the order the court expressly found that “the said Goon Bon June was bom in the United States, is therefore a citizen thereof, and therefore legally entitled to be and remain in the United States.” So far, the ease seems to fall under the familiar principle that the conclusion of the court that saw the witnesses is not to be disturbed, unless plainly wrong.
But the difficulty arises out of the use thought by the majority of this court to have been made by the court below of the record of the United States commissioner in Vermont, when, in 1896, Goon Bon June was arrested and discharged. Conceding that in the brief opinion of the learned District Judge there are expressions that go too far, I am unable.to construe the record as my brethren do. As I understand this record, all that the court below did was to treat the fact that Goon Bon June was arrested and discharged — inferentially on the ground that he then appeared to be an American citizen —as cumulative evidence of his citizenship. But the District Court did not, as I understand the record, treat this discharge as a judgment or an adjudication. The facts which then occurred, shown both by the testimony of Goon Bon June and by the evidence as to the commissioner’s bill for fee3 and his docket, were but corroborative evidence of Goon Bon June’s story as to his birth. The decision in favor of Goon Bon June’s citizenship does not rest upon the Vermont record as a judgment or an adjudication. It rests upon the finding of the court below that, on all the evidence, June was born in the United States. Treating the proceedings in Vermont in 1896 merely as evidence, and not as a judgment and adjudication, the decision below was fully warranted, and should on elementary principles be affirmed.
I am unable to believe that the trifling error in the expressions used by the learned judge in his memorandum warrant us in reversing the conclusion below. The controlling parts of the record are the order, containing the flat finding of citizenship, and the evidence. Goldfield v. Roger (C. C. A.) 249 F. 39, 40. Townsend v. Beatrice Cemetery Ass’n (C. C. A.) 138 F. 381, 383, and cases cited. It is indisputable that the judge that saw and heard Goon Bon June believed him truthful and accurate. This is enough to require this court to affirm his decision.