THE UNITED STATES, PLAINTIFF AND.APPELLEE, VS. LUI PAK CHUEN, DEFENDANT AND APPELLANT.

It appears from the evidence: (a) That
on October 17, 1919, the accused was charged by the provincial fiscal
of Samar before the justice of the peace of Calbayog, Samar, with the
offense of residing in the Philippine Islands without any legal
certificate, in violation of sections 4 and 5 of Act No. 702; (b)
that upon trial held on October 20, 1919, said justice of the peace
found him guilty and transmitted the record to the Court of First
Instance; (c) that on November 6, 1919, the provincial fiscal
filed in the Court of First Instance a new information alleging the
same facts stated in the previous information; (d) that on
January 28, 1920, the case was heard before the Honorable Eulalio E.
Causing, Judge of Court of First Instance of Samar, who on January 31st
of said year rendered judgment declaring that the accused is a Chinese
laborer, who, having been required in January, 1919, by a municipal
policeman of Calbayog to exhibit his certificate of residence required
by Act No. 702, did not exhibit it because he did not have any, and
therefore found him guilty of a violation of said law and ordered his
deportation to China; (e) that the accused was notified of the
preceding decision on February 2, 1920, without having appealed
therefrom within the period allowed by law; (f) that the
accused was sent to Manila and placed under the custody of the
Constabulary for his deportation. Upon his arrival at Manila, one
Gregorio Nicolas filed in the Court of First Instance of Manila,
against the Chief of the Constabulary, a petition for the writ of habeas corpus
which was denied by the court, but from which decision appeal was taken
to this court, the same being registered under R. G. No. 17306 (decided
August 4, 1921, not reported); (g) that pending decision in the case of habeas corpus
the attorney for the defense presented on April 24, 1920, a motion in
the Court of First Instance of Samar, asking that, under the provisions
of section 113 of the Code of Civil Procedure, the judgment of January
31, 1920, should be set aside. To this motion Exhibits A, B, C, and D,
of the defense were attached. The first two exhibits are copies of the
correspondence between the attorney for the defense and the Collector
of Customs with respect to the search for the certificate of the
accused; the third, a certificate of the Collector of Customs which
shows that the accused is the same person mentioned in section six
certificate, a copy of which is Exhibit A of the prosecution, and the
fourth, that is, Exhibit D, is a copy of section six certificate,
certified by the Collector of Customs and containing a copy of the
document under which the accused obtained permission to enter the
Philippine Islands; (h) that on November 1, 1920, the
Honorable N. Capistrano, then Judge of First4 Instance, denied this
motion on the ground that his predecessor, Judge Causing, in rendering
his decision of January 31, 1920, undoubtedly took into consideration
the special certificate issued’ in favor of carnival visitors; (i)
that in November, 1920, the accused appealed from the order overruling
the motion of April 24, 1920, and on the 12th of the same month of
November he also presented a notice of appeal against the judgment of
January 31, 1920.

The appellant alleges that the trial court erred: (1) In
finding in his decision of January 31, 1920, that the accused did not
have the right to remain in the Philippine Islands and in ordering his
deportation; (2) in denying the motion asking that the judgment should
be set aside under the provisions of section 113 of the Code of Civil
Procedure, and, in connection with this point, the appellant asks for
the reversal of the judgment appealed from, relying upon the doctrine
announced in the case of United States vs. Li Sui Wun (32 Phil., 151).

In view of the evidence before us, we are of the opinion, and so
hold, that the trial court erred in denying the motion of April 24th
presented under the provisions of section 113 of the Code of Civil
Procedure. According to Exhibits C and D which are attached to the
motion, the court should have set aside the judgment of deportation
rendered on January 31, 1920, because, according to the doctrine laid
down by this court in the case of United States vs. Li Sui Wun, supra,
based upon various decisions of the Supreme Court of the United States
which are cited in said case, the accused in the present case has the
right to remain in the Philippine Islands. The office of the
Attorney-General recommends that the record be remanded to the court of
origin with instructions to the effect that a new trial should be held
and that in view of the newly discovered evidence, the order of
deportation of January 31, 1920, should be set aside. Attorney for the
defense, while not objecting to the recommendation of the
Attorney-General, maintains, nevertheless, that this court, by virtue
of the provisions of said section 113 of the Code of Civil Procedure,
may revoke the order appealed from and set aside said judgment of
deportation.

As it appears from the evidence that the motion of April 24th was
presented within the period required by law, and as in our judgment the
failure of the accused to exhibit his certificate is excusable, for
said certificate was filed in the office of the Collector of Customs,
as was subsequently discovered by his attorney; and on the other hand,
as it appears from the evidence before us that the appellant has the
right to remain in the Philippines in accordance with the doctrine laid
down in the case of United States vs. Li Sui Wun, supra,
we are of the opinion that it is proper to apply to the appellant the
benefits conceded by section 113 of the Code of Civil Procedure,
according to which this court may relieve a party or his legal
representative from the enforcement and the effect of an order, or
judgment, or other proceeding taken against him which results from
mistake, inadvertence, surprise, or excusable negligence on his part.

In the case of United States vs. Li Sui Wun, supra, this court said:

“Chinese students, merchants, tourists, etc.,
except laborers, are not prohibited from entering territory of the
United States. They may enter when they are armed with the ‘section six
certificate/ When they are provided with the ‘section six certificate,’
they may enter territory of the United States, the same as any other
alien of the most favored nation. If such Chinamen are once admitted
into territory of the United States, by virtue of their possession of
the ‘section six certificate,’ they may remain therein, exactly the
same as any other alien of the most favored nation. The legal
possession of the ‘section six certificate’ removes the prohibition of
Chinese aliens to enter territory of the United States, and places them
upon the same footing as aliens of the most favored nations.

“A Chinese person admitted into territory of the United States under
the ‘section six certificate,’ as a student, and who later becomes a
laborer cannot be deported. Having entered legally, he cannot be
deported because he later becomes a laborer. A Chinese person admitted
into territory of the United States, as a student, may remain after he
ceases to be a student, and may earn his living in any lawful manner,
without subjecting himself to deportation. If a Chinaman has been
lawfully permitted to enter territory of the United States, he may
lawfully change his vocation without incurring the penalty of
deportation. Once legally admitted he may remain during his pleasure,
so long as he conforms with the laws of the United States.”

In view of what has been said the order appealed from should be
reversed, and the judgment of deportation of January 31, 1920, against
the accused Lui Pak Chuen, who is hereby declared to be entitled to
remain in the Philippine Islands, is set aside with costs de oficio. So ordered.

Johnson, Araullo, Street, and Avancena, JJ., concur.