United States v. Niroku Komai , 286 F. 450 ( 1923 )

TRIPPET, District Judge.

The defendant, Komai, has been convicted of a conspiracy to conceal and harbor a Japanese alien not duly admitted to the United States by an immigration inspector of the United States, and not entitled to reside within the United States. The defendant has made a motion in arrest of judgment. Section 8 of the Immigration Daw is as follows:

“Sec. 8. That any person, including the master, agent, owner, or consignee of any vessel, who shall bring into or land in the United States, by vessel or otherwise, or shall attempt, by himself or through another, to bring into or land in the United States, by vessel or otherwise, or shall conceal or harbor, or attempt to conceal or harbor, or assist or abet another to conceal or harbor in any place, including any building, vessel, railway car, conveyance, or vehicle, any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States, under the terms of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding §2,000 and by imprisonment for a term not exceeding five years, for each and every alien so landed or brought in or attempted to be landed or brought in.” Comp. St. 1918, Comp. St Ann. Supp. 1919, § 4289%dd.

Section 37 of the Criminal Code (Comp. St. § 10201) provides that, if two or more persons conspire to commit any offense against the United States, they shall be guilty of a conspiracy. Defense counsel raises the question that, since there is no penalty provided for harboring an alien in the United States, there can be no conspiracy under section 37.

It is plain that section 8 provides no penalty for the misdemeanor defined therein of concealing or harboring an alien. The penalty only relates to bringing in or landing in the United States the alien. There is not even any ambiguity in the statute on this subject. In my opinion the fact, that no penalty of any kind is prescribed by section 8 does not bar a prosecution for a conspiracy. Section 8 describes concealing and harboring an alien as an offense, to wit, a misdemeanor. One who conspires to commit a misdemeanor “hath offended the law.”

The motion in arrest of judgment will be overruled. Biskind v. United States (C. C. A.) 281 Fed. 47; U. S. v. Stevenson, 215 U. S. 190, 30 Sup. Ct. 35, 54 L. Ed. 153; U. S. v. Hutto, 256 U. S. 524, 41 Sup. Ct. 541, 65 L. Ed. 1073.