(dissenting) .
In order to bring this case into proper focus it might be well to first briefly restate the facts.
Appellant was born in Russia in 1893 and emigrated to the United States in 1909. Shortly after her arrival in this country she secured employment in the garment industry in Philadelphia and was still so employed at the time of trial. After filing her declaration of intention in 1928 she executed an Application for a Certificate of Arrival and Preliminary Form for Petition of Citizenship on September 24, 1931. Question 29 of that form asked her: “Have you ever been arrested or charged with violation of any law of the United States, State, or any city ordinance or traffic regulation ?” Appellant answered the question “No”. Again on oral examination by a United States Naturalization Examiner on October 23, 1931, at the time she filed her petition for naturalization appellant, under oath, gave a negative answer when asked whether she had ever been arrested. On January 29, 1932, she was admitted to citizenship pursuant to an order of the United States District Court for the Eastern District of Pennsylvania.
Following an investigation by the Government in 1949 during which it appeared that appellant had been arrested seventeen times between June 4, 1929, and February 19, 1930, the United States on January 10, 1950 brought the instant suit to revoke Miss Kessler’s certificate of naturalization on the ground of fraud and illegal procurement. The basis of the denaturalization proceedings was 8 U.S.C. § 738(a) which read as follows:
“(a) It shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 701 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground of fraud or on the ground that such order and certificate of naturalization were illegally procured.”1
The trial court, finding as a fact that appellant’s answers to the question con*60cerning arrests, both in her petition and before the Naturalization Examiner, were false and were made "knowingly, wilfully and deliberately for the purpose of deceiving the Government, decreed that appellant’s certificate of naturalization be revoked for fraud. The district court having made no finding with respect to illegal procurement, that issue is not before us save as it is raised collaterally by appellant.
There can be no doubt that appellant was arrested seventeen times between June 4, 1929, and February 19, 1930. Appellant’s answer to the complaint admits the fact of these arrests, as does her testimony. But while the arrests are not denied it is said that there was no intent on her part to deceive because she believed, at the times she answered the question, that she could not be arrested if she did not “commit anything” and that her union lawyer had told her she had done nothing wrong.2 I am convinced that, the question of the wilfullness of Miss Kessler’s answer being a factual one, there was no error in the trial court's finding of fraud.3 An examination of the relevant parts of the transcript far from casting a doubt on the correctness of the district court’s determination, strongly supports it.
A more serious attack on the order of denaturalization is made on the legal aspects of this case. The majority argues that the arrests were “illegal” because the charge on which they were made, as noted on the police records, was “obstructing the highway,” which, it is stated, was an offense unknown to the law of Pennsylvania. It is asserted that since the arrests were illegal and invalid appellant was justified in her negative answer to Question 29.
The fine spun theory advanced to confine the decision to the allegedly “peculiar” facts here involved points up, if that be needed, the basic misconception by the majority of the purpose of the question. That misconception arises from the acceptance of the fantastic suggestion that appellant is being deprived of citizenship because of an unfounded traffic charge against her. As is perfectly plain from the cases construing 8 U.S.C. § 738(a) and its predecessors, infra, it is not the matters concealed but the fact of concealment which constitutes the fraud for which a suit for denaturalization lies. A so-called “illegal” arrest, although it may be challenged in the proceedings in connection with which it is made and while it may form the basis of a civil suit for false imprisonment or false arrest, is nonetheless an arrest. Were the law otherwise an applicant, fearful that his past encounters with the law would deny him citizenship, need only conceal them and when his concealment is discovered, if it ever is, make a collateral attack on their regularity or legality. Such a state of the law would put a premium on fraud and defeat the purpose of the inquiry, viz., to determine whether the applicant qualifies for citizenship.
*61The opinion then adopts appellant’s argument that because the matters concealed would not, if revealed, have served to defeat her petition for citizenship they were immaterial to the inquiry and cannot be made the basis for revocation on account of fraud. The cases hold that a false answer under oath in naturalization proceedings is of itself a sufficient ground for denaturalization under 8 U.S. C. Section 738(a) irrespective of whether the facts concealed would have been a bar to the grant of citizenship had they been known to the court at the time of naturalization.
In United States v. Saracino, 3 Cir., 1930, 43 F.2d 76, this court reversed a decree of the district court and ordered defendant’s certificate revoked where it was shown that he had failed to reveal an arrest and conviction. While the non-disclosed data went to moral character, as pleaded by the Government, the court said in 43 F.2d at page 77:
“A naturalization certificate should be canceled if the applicant has committed fraud upon the government. The examination was one step in ascertaining whether the alien was a fit candidate for citizenship. The Supreme Court of the United States has held that the grant of naturalization is one of the highest gifts which can be conferred by the United States. For this reason, it is obvious that the alien must deal with the utmost good faith toward the government.”
Again in United States v. Accardo, 208 F.2d 632, we affirmed, per curiam, a de-naturalization order of the United States District Court for the District of New Jersey, 113 F.Supp. 783, 785, stating that we agreed with the conclusions there reached by Judge Hartshorne and that it would be a waste of words to add anything to his discussion. In that case defendant had failed to disclose certain arrests and convictions.4 Deciding that the nondisclosures constituted fraud for which revocation would lie the district court said, “It was defendant’s duty to disclose an arrest, as well as a conviction, in order that the Government might investigate before granting the decree.” (Emphasis supplied.)
See also Russo v. United States, 1942, 127 F.2d 171, where the Sixth Circuit affirmed an order of denaturalization on the ground that appellant had made wil-fully false statements in his application for a certificate of naturalization.
Among the district court denaturalization decisions which are in accord with these views are United States v. Goldstein, E.D.N.Y.1939, 30 F.Supp. 771; United States v. Marcus, D.C.D.N.J.1932, 1 F.Supp. 29; United States v. Di Blasi, D.C.D.N.J.1932, 1 F.Supp. 28, and United States v. Etheridge, D.C.D.Or.1930, 41 F.2d 762. Without discussing these opinions in detail it will suffice to note that they do not adopt the test of materiality urged by appellant.
It is not, however, necessary in the instant appeal to reject this test of materiality in order to affirm the judgment of the trial court since I believe that had appellant’s fraud been uncovered before the petition for naturalization was acted on citizenship would not have been granted regardless of the character of the matter fraudulently concealed. This is so because the fact of fraudulent concealment in any matter relating to naturalization or citizenship “involves moral turpitude and exhibits the unfitness of the applicant for the high privilege of citizenship.” Del Guercio v. Pupko, 9 Cir., 1947, 160 F.2d 799, 800.5 In the latter proceeding the applicant had concealed the fact that she had been arrested for and convicted of a morals charge and for a false hotel registration. Although the Ninth Circuit agreed with the district court that the morals charge, as *62explained by appellant, did not reflect adversely upon her moral character, it reversed the lower court’s grant of citizenship because of the fraudulent concealment involved. To the same effect are Stevens v. United States, 7 Cir., 1951, 190 F.2d 880, and Sodo v. United States, 1950, 406 Ill. 484, 94 N.E.2d 325. As pointed out in all those decisions, Section 346(a)(1) of the Nationality Act of 1940, 54 Stat. 1163, 8 U.S.C. § 746(a)(1), made it a felony to knowingly make a false statement under oath, orally or in writing, in any matter relating to naturalization or citizenship. While that section has been repealed6 it is now found in 18 U.S.C. § 1015(a) and was in effect in substantially similar form at the time appellant made the false statements which led to the present action.7
This circuit, too, has said that a false answer given in a naturalization proceeding which may conceal lack of qualification for citizenship or head off further inquiry is a material fraud. Rein v. United States, 3 Cir., 1934, 69 F.2d 206. While that matter was a criminal prosecution of a witness who had fraudulently vouched for the good moral character of an applicant for citizenship, the point at issue is the same one raised by appellant. See also our opinion in United States v. Doshen, 1943, 133 F.2d 757, 760, where Judge Biggs, citing authorities, said that the courts have held that any false statement made in the course of a naturalization proceeding constitutes a fraud upon the government.
It may be noted parenthetically at this point that the contention to the effect that there can be no revocation of citizenship for fraudulent nondisclosure unless the matter concealed would have prevented naturalization in the first instance, though it would be a proper defense to a charge of illegal procurement (in which case, however, the wilfullness of the concealment would be immaterial), cannot be availed of in a revocation proceeding based on fraud. Here, as mentioned earlier, the district court did not pass on the charge of illegal procurement but did make finding of fraud.
The majority opinion seems to seriously contend that the real intent of the framers of Question 29 calls for the insertion of the word “for” before the word “or” in that question and therefore the question should be viewed as conjunctive instead of disjunctive. It is said the question should have read, “Have you ever been arrested for or charged with any violation of any law, etc.,” From this it is reasoned that appellant, although knowing she had been arrested, could with complete candor have answered the question in the negative since she did not believe she had ever been properly charged with a violation of any law. Quite aside from the rather startling premise on which it is based a major difficulty with this defense is that appellant herself testified that if she had understood the significance of an arrest when she answered the question she would not have answered it as she did. We are thus brought squarely back to the factual questions of wilful concealment and intent to deceive which have been properly resolved against appellant.
For the above reasons and because I believe the majority’s action actually overrules United States v. Accardo, supra, lately decided by this court, I would affirm the order appealed from.
. This section was superseded by the Act of June 27, 1952, c. 477, Title III, Ch. 2, Section 340, 60 Stat. 260, 8 U.S.C.A. § 1451(a), which now reads in pertinent part as follows:
“§ 1451. Revocation of naturalization— Concealment of material evidence; refusal to testify
“(a) It shall be the duty of the United States district attorneys for the respee*60tive districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 1421 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or "by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate * * *
. Appellant stated on cross examination that she would have answered the question differently if she had understood the significance of an arrest.
. It may be noted that the court below was not impressed by appellant’s conten-tíon that her answers were incorrect because she was a woman without formal education. In finding her answers to be fraudulent because wilfully false and made with intent to deceive the court said that appellant is a “self-contained, shrewd and intelligent person.”
. Several of the arrests concealed did not result in convictions.
. The requirement that an applicant be of good moral character has, of course, been a part of all naturalization statutes here pertinent.
. 62 Stat. 862.
. The Act of March 4, 1909, c. 321, Section 80, 35 Stat. 1103 (derived from R.S. Section 5395, p. 1046) read as follows:
“Sec. 80. Whoever, in any proceeding under or by virtue of any law relating to the naturalization of aliens, shall knowingly swear falsely in any case where an oath is made or affidavit taken, shall be fined not more than one thousand dollars and imprisoned not more than five years.”
By the Act of March 2, 1929, c. 536, Section 9, 45 Stat. 1515, 1516, the above quoted language, which had been made a part of the Criminal Code by the Act of March 4, 1909, was added to the Act of June 29, 1908, 34 Stat. 596, as amended. The Act of June 29, 1906, with the above amendment, was in effect at the times appellant gave the answers in question.