The defendant above named was indicted by the grand jury on the 7th day of March, 1930, charged with a violation of section 144, title 8, USCA. The indictment charges two counts. The first charges that the defendant on or about the 15th day of February, 1930, did willfully and unlawfully bring into and attempt to bring into the United States one certain Japanese person, to wit, Hiehizo Iehiki, an alien; the second count charges him with unlawfully harboring and concealing said Japanese.

At the conclusion of the trial of the ease, the court dismissed the first charge for insufficient evidence and the jury returned a verdict of guilty against the defendant of harboring and concealing.

The defendant thereupon presented a motion in arrest of judgment upon the ground that the statute, section 144, title 8, USCA, did not provide any penalty for the offense of concealing and harboring an alien.

The statute reads as follows:

It will be noted that the penalty provided runs only against the defendant for each and every alien so landed or brought in or attempted to be landed or brought in.

In the case of Whitworth v. United States, 114 F. 302, 304 , Circuit Judge Sanborn of the Court of Appeals, Eighth Circuit, said:

In the ease of the United States v. Niroku Komai et al. (D. C.) 286 F. 450, 451 , Judge Trippet in commenting upon this statute said:

In re Bonner, 151 U. S. 256 , 14 S. Ct. 323, 325 , 38 L. Ed. 149 ; Mr. Justice Field used this language:

*1008 If Congress had intended to impose the penalty mentioned in the statute for the harboring or concealing of an alien, it could readily have done so by omitting from the statute the words, “for each and every alien so landed or brought in or attempted to be landed or brought in.”

This may have been an oversight on the part of Congress, but the fact remains that by inserting this language in the statute, they have limited the penalty to bringing in or landing an alien in the United States.

From the rules of construction of criminal statutes, I am forced to conclude that the court is without authority to enlarge or extend the meaning of the language of this aet.

The motion in arrest of judgment is granted.