Phelan

(concurring).

I have serious doubts whether Congress intended the deportation statute to apply to a case like this. I concur in the affirmance only for the reason that this court, in Nishimoto v. Nagle, 9 Cir., 44 F.2d 304 , has already decided the point, and should, until higher authority has spokeny- follow that decision.

Fong Haw Tan seeks release from custody of the acting District Director, Immigration and Naturalization Service, Port of San Francisco, California, by habeas corpus proceedings. After issuance of a show cause order, the court dismissed the petition, and petitioner appeals.

Appellant, a native of China, was admitted into this country in August, 1910, as a permanent resident, and has resided here ever since. On June 11, 1925, he was indicted for the murder of two persons in separate counts of the same bill. Therein he was charged with having committed both crimes on May 22, 1925. Pie was convicted on both counts by the same jury on July 25, 1925. Thereafter, a distinct and separate sentence of imprisonment in the state penitentiary for the term of his natural life was pronounced upon him upon each conviction. Both crimes involved moral turpitude. The point for decision involves construction of 8 U.S.C.A. § 155 (a), the relevant part of which is set out in the margin.

The Director claims that appellant has been sentenced twice in the circumstances required by the statute for deportation, while appellant claims that, giving full weight to the purpose of the act, he has been…