Takehara

I dissent from the views expressed by my associates and for reasons hereafter stated I would affirm the judgment on appeal. Furthermore, I see nothing in the doctrine of the Mandoli case relied on by the majority which requires a reversal.

Appellant voted in a Japanese political election held in 1947 after he was 21 years of age (see Miranda v. Clark, 9 Cir., 180 F.2d 257 ) and from the record and the inferences which might legitimately be drawn from the testimony of appellant 1 I am fully *563 persuaded that the findings of the lower court are not clearly erroneous. Argument is unnecessary to emphasize that there are altogether too many imponderable factors and elements present in the process of judging the credibility of a witness (who in this case is certainly a vitally interested party and not an impartial witness) to justify us in substituting our judgment as to what the trial judge must accept as true in weighing are testimony of such a witness. (See eases footnote 3.) His manner of testifying, the nature and the probability of the truth of his story told through an interpreter, the appearance of candor or lack of candor in his testimony, and the other shadings and nuances…

This appeal is from a denial of appellant’s application under 8 U.S.C.A. § 903 for a decree adjudging him to be a citizen of the United States.

The findings below were these: Appellant was born in the State of Washington in 1926 of Japanese-born parents, nationals of Japan. At the age of four years he was taken to Japan for a visit with his grandparents, and after some months there returned to the United States. In 1935, in company with his older brother, he again went to Japan to be with his grandparents. The brother returned to the United States in 1939, and appellant remained in Japan, attended school during his minority and worked on a farm. During World War II he was given a physical examination preliminary to serving in the Japanese Army, but was rejected because of his failure to measure up to physical requirements. On April 5; 1947,' shortly after obtaining his *561 majority, 1 he voted in the Japanese election held on that date, this being during the military occupation by United States forces. The concluding finding, nebulously indicative of the court’s approach to the case, we quote in full:

The court concluded that by virtue of his voting appellant had expatriated…

(concurring).

I agree that the case of Mandoli v. Acheson, 334 U.S. 133 , 73 S.Ct. 135 , decided after the decision of the trial court, necessitates a reversal. I also agree that by our decision in Acheson v. Marika Kuniyuki, 9 Cir., 189 F.2d 741 , we approve the view of the law expressed by Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510 . I think, however, that these conclusions lead to the result that there remains a question of fact undecided, namely, whether the appellant’s voting was voluntary. As I read the record this question has not yet been decided in the light of what we have here held to be the law. I believe that this is a question of fact which is properly for the trial court and not for us.

Accordingly, I am of the opinion that the cause should be remanded with directions to the trial court to make appropriate findings upon this matter.

205 F.2d 560 TAKEHARA v. DULLES, Secretary of State of the United States. No. 13555. United States Court of Appeals Ninth Circuit. June 11, 1953. Toru Sakahara, Gerald Shucklin and Hile, Hoof & Shucklin, Seattle, Wash., for appellant. J. Charles Dennis, U. S. Atty., Seattle, Wash., Guy A. B. Dovell, Asst. U. S. Atty., Tacoma, Wash., for appellee. Before HEALY, BONE, and POPE, Circuit Judges. HEALY, Circuit Judge. 1 This appeal is from a denial of appellant's application under 8 U.S.C.A. § 903 for a decree adjudging him to be a citizen of the United States. 2 The findings below were these: Appellant was born in the State of Washington in 1926 of Japanese-born parents, nationals of Japan. At the age of four years he was taken to Japan for a visit with his grandparents, and after some months there returned to the United States. In 1935, in company with his older brother, he again went to Japan to be with his grandparents. The brother returned to the United States in 1939, and appellant remained in Japan, attended school during his minority and worked on a farm. During World War II he was given a physical examination preliminary to serving in the Japanese Army, but was…