(concurring). I cordially concur in all that is said in the foregoing opinion with reference to the first assignment of errors. That is, in such cases to warrant a finding for the government it must appear that the defendant assisted or encouraged the migration here of one he knew to be an alien.
I cannot wholly agree to what is said about the second assignment of errors. There is no dispute that Graham was an alien. We start with the proposition that it was essential for tire government to prove that the defendant knew that Graham was an alien. There was an agreed statement of facts, but there was no agreement as to what inferences should be drawn from the facts agreed to.
Knowledge can seldom be proven by direct evidence;, it is usually proven by circumstances.
Whatever rule is here declared with reference to Canada and North Dakota must in my judgment be equally applicable to Old and New Mexico. While in both Canada and North Dakota the language generally spoken is English, there are in both countries many foreigners chiefly from Northern Europe. On the other hand, in Old and New Mexico the majority of the people are of Spanish descent and as yet speak the Spanish, tongue. In both there are a considerable number of Americans in the population.
Prepared to indulge every presumption in favor of innocence, I concede that if a man carrying on railroad building or operation in New Mexico should be traveling in Old Mexico and there met a Mexican who said he was an American and wanted employment on,the American side, and the person thus approached believed the Mexican and employed him, he would not be guilty of knowingly assisting or , encouraging the migration to this country of an alien; but if without anything to. mislead him the person in question wrote to a Mexican in *51Mexico to come over and he would be given employment, a jury would be justified and it would be its duty to find that the man who thus wrote knew that the party was an alien.
If I am not right in this, it would in substantially all cases be impossible to prove knowledge, and there is nothing in the statute to prevent this country from being flooded with the cheap peons of Old Mexico, under contract.
In this case while it would normally have been for the jury to say from the fact that this man was an alien and wrote from a foreign land asking employment and the cautious character of the reply of the defendant’s trainmaster whether the defendant knew that Graham was an alien, so a jury being waived, it was for the court to find from the' evidence whether defendant knew that fact. If personally called upon to pass upon that question, I would have found there was knowledge upon the defendant’s part from the circumstances; but the District Court found otherwise, and, as its finding has the force and effect of the finding of a jury, I am not so sure that it was wrong that I feel its decision should be reversed.
I therefore concur in the result, but must make it plain that if the finding had been the other way I should have deemed it the duty of this court to have affirmed the judgment.