CHARGE, TO THE JURY.
These cases arise upon two informations filed by the United States District Attorney for the District of Hawaii, in which informations the defendant is charged with violating the provisions of an Act of Congress of date March 3, 1891, and entitled “An Act in amendment of the various Acts relative to immigrants and the importation of aliens under contract or agreement to perform labor.”
Tbis Act prohibits the introduction into- the United States, of certain objectionable classes of aliens and provides that when *331ships arrive a,t an American port having on board certain alien immigrants, the inspection officers shall enter -them and make an inspection of the aliens on board, or they “may order a temporary removal of such aliens for examination a,t a designated time and place, and then and there detain them until a thorough inspection, is mada” (Section 8 of the Act.)
The special provision of the Act under which these informations are prosecuted, is Section 10 thereof, which reads as follows:.
“That all aliens who may unlawfully come to thei United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came.
“And if any master, agent, consignee or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to tire port from whence they came, or to pay the cost of their maintenance while on. land, such master, agent, consignee or owner shall be deemed guilty of a misdemeanor. .”
Said section provides further the manner of the punishment for such misdemeanor, namely, by a fine to- be imposed.
Under the allegations1 of one of the informations filed in these cases, which have been consolidated for the purpose of convenience, it appears that:
On tire 6th day of September, 1901, one Tatsngoro Muramoto, a Japanese immigrant, came to the port of Honolulu on board of the steamship “Doric,” bound on a voyage from the empire of China to the state of California, and for which steamship tiie defendant herein was the agent; that the said Japanese immigrant is unlawfully in the country, having come here contrary to the provisions of Section 10 of the immigration Act as amended, heretofore quoted, and that the defendant refused to receive hack on board the said vessel, refused to detain on hoard the said vessel and neglected and refused to return to the port from whence he came said Japanese immigrant.
*332Tbe same allegations appear in tbe second information, in relation to two- Japones© immigrants, named therein as Hayataro Ohakimo and Taltichi Knwano, who' arrived here on board the steamship “China,” which was bound on a voyage from the empire of China to the state of California, on the 28th day of August, 1901: that the said Japanese •immigrants' are unlawfully in the country, having come here contrary to the provisions of Section 10 of the 'immigration Act as amended, hereinbefore quoted, and that the defendant refused to receive back on board the said vessel, and refused to' detain on board the said vessel and neglected and refused to return to the port from whence they cam©, the aforesaid Japanese immigrants.
That defendant is the agent of the said 'steamship', “China.” It appears that the special immigrants in these cases were removed from on board the respective vessels referred to in accordance with the provisions of Section 8 of the aforesaid Act, and temporarily landed for the purposes of a thorough inspection; that after inspection, they were rejected by the inspection officers and notification of such rejection sent to1 the defendant herein as agent of the said steamships, “China” and “Doric.’ That afterwards said immigrants escaped.
It is claimed by the government that the immigrants referred to were not returned to' the port from whence they came by the defendant herein, in accordance with law, but that the defendant herein refused and neglected to- do- so:
Gentlemen of the jury: I will instruct you as to the law in this case. The facts you are to be the sole judges of.
It is the law, that after immigrants have been examined by the proper inspection officers and a decision adverse to their remaining in- the country is arrived at, that their1 custody is then in the steamship company or its agent; and it is the duty of the steamship company or its agent, after notification of the rejection of such immigrants, to deport them to the country from whence they came.
If, after rejection by tbe aforesaid immigration officers, and pending deportation, tbe immigrants, or any one of them, es*333cape from tbe custody of tbe steamship company or its agent, then the said steamship company or its said agent, is liable under the la,w.
If, therefore, yon should find, upon a consideration of the facts in these cases, that any one of these immigrants was rejected by the proper inspection officers and'due notice given to the steamship company or its agent, towvit: the defendant herein, and after such rejection and notice and pending deportation, said immigrant escaped, then you must find a verdict of guilty as to the charge in reference to that immigrant; and so on through the two cases.
Gentlemen of the jury, I instruct you further that you cannot consider any attempt upon the part of the defendant to prove due care on its part, or the fact that due care was exercised to1 prevent the escape of any one of these immigrants. Under the Act of Congress upon which these informations are based, this is noi excuse. The steamshipi company took the risk that the aforesaid Japanese immigrants would not be adjudged competent to enter the country when it brought them., or either of them, toi this port, and it must at its' peril conform to the provisions of the statute. While this may seem harsh, yet the intent of Congress, as shown in the Act, is clear. Nothing will excuse the steamship company, or its agent (the defendant in this case), but what is known as ms major (overwhelming force) or inevitable accident. Nothing has been shown that the escapes in these eases was the result of either of these conditions.
There is one thing further’, gentlemen of the jury; you are instructed that in these cases, when the government has established to your satisfaction that these immigrants coming into the United States were rejected by the immigration officers, drily authorized to act in these matters, and tire defendant was notified of such rejection, it then became incumbent on the defendant, as I have before stated, to return such immigrants to the port whence they came.
When the government has established these facts to your satisfaction, the burden of proof is cast on tbe defendant to show that such return was made. As the law has placed the custody *334of such immigrants in. the steamship companies, as I have heretofore instructed you, it is not required of the government that it prove that the immigrants were not returned. It is a well settled rule of law, that even in criminal cases, the person within whose knowledge the facts are supposed toi lie, is required to prove such facts. I therefore instruct you, that if the defendant in these eases has not made out to your satisfaction that the immigrants were returned to the port whence they came, then your verdict should be guilty.
In arriving at a verdict in this case, gentlemen of the jury, it must be by the unanimous assent of all your members.
Note: See similar case, H. Hackfeld & Co., Ltd., v. U. S., affirmed by C. C. A. Oct. 5, 1903, not yet reported.