Gib v. Weedin

GILBERT, Circuit Judge.

Charlie Gib, a Chinese alien, was sentenced to one year in the penitentiary at McNeil’s Island for violation of the Harrison Act (Comp. St. §§ 6287g-6287q) and one year for violation of the Naxóotic Drugs Import and Export Act (Comp. St. Ann. Supp. 1923, § 8800 et seq.). Kee How, also a native of China, served two concurrent terms at McNeil’s Island, for one year and two months and one year, respectively, for violations of the Narcotic Drugs Import''and Export Act. At the •expiration of their terms off sentence, steps were taken to deport said aliens under authority of the Act of February 9, 1909, as amended May 26, 1922, § 1, subd. (e), being Comp. St.,Ann. Supp. 1923, § 8801, which provides that an alien convicted under subdivision (e) of section 2 shall, upon the termination’ of his imprisonment, upon warrant i issued by the Secretary of Labor, be deported in accordance with sections 19 and 20 of the Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 4289^4¿j, 4289%k). They thereupon each applied for a writ of habeas corpus in the court below, claiming that their deportation and detention were illegal, for the reason that the indictments under which they were convicted were fatally defective. The court below denied the writs and dismissed the petitions. On appeal to this court, the authority to deport the said aliens is again challenged on the ground of the alleged fatal defects in the indictment.

In Weedin v. Moy Fat, 8 F.(2d) 488 we held that the question whether an indictment, fails to charge an offense against the United States is one for the determination of the court in which the indictment is pending, and that error in its decision does not affect its jurisdiction or warrant the discharge of the accused on habeas corpus. The principle so announced is applicable here, and, as it is not shown that the court below was in error in ruling that the offenses for which the appellants were sentenced involved moral turpitude, and that they were subject to deportation in accordance with sections 19 and 20 of' the Act of February 5, 1917, the judgment in each' ease must be affirmed. It is so ordered.