56063/394
Decided by the Board June 26, 1944. Approved by the Attorney General July 12, 1944
Crime involving moral turpitude — Nonsupport (Section 13008, Ohio General Code) — Housebreaking (Ohio).
1. Nonsupport, in violation of section 13008 of the Ohio General Code, is not a crime involving moral turpitude, within the meaning of the Immigration Act of 1917. The statute is so framed that an individual may be convicted thereunder where he has acted in good faith and with honest motives, where the child is not in destitute circumstances, is not in need of a support of the father, has not become and is not likely to become a public charge, and where the health or the life of the child has not been impaired in any wise.
2. Housebreaking with intent to commit larceny in violation of Ohio law is a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes involving moral turpitude, to wit: Nonsupport in violation of section 13008 of the Ohio General Code; Housebreaking (Ohio).
Discussion: The respondent is a native and citizen of Czechoslovakia, 47 years of age. He last entered the United States on February 13, 1921, at Boston, Mass. He has been in the United States for a continuous period of 23 years. He has two minor children who live with his divorced wife and her present husband. The divorce occurred in 1936 and 2 years later on March 7, 1938, the wife filed a complaint in the Juvenile Court of Ohio alleging that the respondent had failed to support the minor children who were living with her and their foster father. There is no indication that the children were not adequately cared for or that they were in fact dependent upon the alien for support between 1936 and 1938. The respondent was found guilty and sentenced for 1 year in the Cleveland Workhouse. He was subsequently convicted on June 15, 1940, in Ohio for the crime of housebreaking, with intent to commit larceny and sentenced to an indeterminate term.
To sustain the respondent's deportability on the charge stated in the warrant of arrest, it must be found that both crimes for which he was sentenced to a term of imprisonment of 1 year or more, are crimes involving moral turpitude. There can be no doubt that the crime of housebreaking with intent to commit larceny is a crime involving moral turpitude. Whether failure or neglect to provide for minor children is such a crime requires a more extended examination and discussion.
The statute defining criminal liability for failure, neglect, or refusal to provide the necessities of life to minor children, under which the respondent was convicted, is section 13008 of the Ohio General Code, which reads as follows:
Whoever, being the father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this State, fails, neglects or refuses to provide such child or such woman with the necessary or proper home, care, food and clothing, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.
The succeeding section of the Ohio General Code, section 13008-1, makes the lack of property or earnings, or the inability to secure employment, or physical incapacity to perform labor, a complete defense to a prosecution brought under the preceding section. (Most if not all States make inability to provide a defense. 39 Am. Jur., sec. 109, p. 769; 10 Uniform Laws Annotated, p. 18.)
The historical background and the evolution of nonsupport statutes are revealing as an aid in fully analyzing the problem presented. At common law failure to support a minor child and abandonment were not punishable criminally, unless the parent's omission constituted a willful injury or amounted to criminal negligence. In some American jurisdictions and in England not even civil liability was incurred, except under the poor laws.
* * * the fact that the offense is designated as "desertion" in the statute is not necessarily controlling. The gist of the offense may nevertheless be the failure to provide support, and if so, the statute may be construed as one penalizing an omission of duty rather than a positive act of desertion (39 Am. Jur., p. 761).
46 C.J., p. 1347.
39 Am. Jur., p. 772.
New Hampshire, Vermont, Illinois, and New Jersey. See Peck, Domestic Relations (1930), pp. 362-3.
Mortimore v. Wright, 6 M. W., 482, 488; 151 Eng. Reprint, 502, 504 (1840); Bazely v. Forder, 3 L.R. (Q.B.D.), 559, 565 (1868); Clarke, Social Legislation (1940), p. 226.
43 Eliz., ch. 2, VII (1601).
Today most States have rendered parents and others amenable to both civil and criminal process by statute for failure to support a minor child. Georgia provides no criminal statute and Kansas provides no civil liability for such failure or neglect. These nonsupport statutes, although criminal, in form, are distinct and apart from the criminal liability provided where a child is neglected in a manner likely to cause danger to its life or health. Nonsupport statutes do not require a violation of parental obligation in so extreme a manner in order to make out the offense. The underlying policy of nonsupport statutes is to enforce the parents' duty of support and to relieve the public from the burden of supporting the child. At common law and in many States today it is considered against public policy to permit children to bring a direct action against a parent for support. It is felt that it would be detrimental to the integrity of the home and that the doors of the courts would be opened for suits by intractable children to allow such actions.
39 Am. Jur., p. 772; and see Cowley v. People, 83 N.Y. 464 (1881).
39 Am. Jur., p. 772.
See 15 North Carolina Law Review, 67-70 (Dec. 1936).
For this reason and to enforce the parent's obligations to his child, the indirect means of criminal proceedings was established. In furtherance of these purposes most states make provision for the suspension of sentence and probation if the parent enters into an undertaking to support or contribute to the support of the child. Most States, but not Ohio, require, for the completion of the crime and as an essential element thereof, that the child be in destitute or necessitous circumstances or dependent upon the parent.
The Supreme Court of Ohio in Seaman v. State, 106 Ohio 177 (1922), declared that the purposes of the Ohio statute are as indicated but primarily to protect the public against the necessity of supporting the children of fathers who are able but neglect or refuse to do so. The court ruled in that case that the furnishing of bond in payment of the obligation to support minor children after conviction satisfies the purposes of the statute and operates to suspend the imposition of sentence required by law.
The statutes of the various States punishing parents for nonsupport of minor children are widely divergent. Some States require a "wilful" failure, others merely a failure or refusal without "just cause," and still others a failure without "lawful excuse." The Ohio statute contains no qualifying language of this nature. The ages of the minor children also vary, from under 14 years to majority. Many States characterize the guilty parents as vagrants, while New York and New Jersey permit their punishment as disorderly persons.
The term "wilfully" has been construed to mean that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it. (39 Am. Jur., pp. 763, 764).
Alabama, C. 1923, sec. 5571; Florida, R.J.S. 1920, sec. 5497; Georgia, C. 1926, P.C., sec. 449; Kentucky, Corrol, St. 1922, sec. 4758 (1); Louisiana, Marr, Ann. R.S. 1915, sec. 2037; Mississippi, C. 1930, sec. 3472; Missouri, R.S. 1929, sec. 4333; Pennsylvania, Cum. Supp. 1928 (West), secs. 16811a (1100)-16811, (1101); Texas, complete St. 1928, P.C., art 607; Virginia, C. 1930, sec. 2808.
New York, Cahill, Cr. C. 1928, secs. 899,905, 911; New Jersey, Comp. St. 1910, p. 1931, sec. 17, as amended by Cum. Supp., 1911-24, secs. 59 (17); p. 1932, sec. 19; p. 1934, sec 24; p. 1935, sec. 29; p. 1937, sec. 40.
Disorderly conduct is not a crime involving moral turpitude. Lewis v. Frick, 189 Fed. 146, 150 (1911); reversed on other grounds 195 Fed. 693 (C.C.A.); 233 U.S. 291. Nor can it be successfully argued that vagrancy involves moral turpitude.
The following features of nonsupport statutes should be particularly noted in connection with the problem presented:
1. Generally an evil intent is not a necessary element of the crime and good faith is immaterial.
2. Where the statute punishes mere failure to support, as in Ohio, the crime may be complete although the child is well taken care of by others.
I Schouler, Marriage, Divorce, Separations, and Domestic Relations, 6th ed., 1921, sec. 800, p. 883; Ohio v. Stouffer, 65 Ohio St. 47 (1901); 131 A.L.R. 482, 483.
3. Under the Uniform Desertion and Nonsupport Act and in 26 jurisdictions, it is requisite to the offense that the child be in destitute or necessitous circumstances, while in others like Ohio, this element is eliminated from consideration.
Uniform Desertion and Nonsupport Act, 10 Uniform Laws Annotated, sec. 1, p. 22; 36 A.L.R. 872; IV Vernier, American Family Laws, pp. 60-61; Mercado v. State, 86 Tex. Crim. App. 559, 218 S.W. 491 (1920); People v. Waddell, 247 Ill. App. 255 (1928).
39 Am. Jur., p. 773; 36 A.L.R. 866, 872.
4. To render one guilty of the statutory offense of neglecting to support a child, it is not ordinarily necessary to show that it is on danger of becoming a public charge, where the statute makes no such condition.
5. Under most statutes actual danger to the life or health of the child is not a necessary element.
6. A total failure to support the child is not essential to the crime. A partial failure to support the child will sustain a conviction under many of the statutes.
7. Mere lack of financial means may not exculpate the parent where the failure to support is found to be due to the parent's unwillingness to exert the ability which he possesses to earn and contribute something for the maintenance of his family.
The scope of the Ohio statute is of widest application. It eliminates defenses contained in other statutes. Without deciding the significance of each and every element listed above, this Board is of the opinion that the instant conviction for nonsupport does not constitute a deportable offense, first, because it is not the type of crime within the contemplation of the Immigration Act of 1917, and secondly, because it does not involve moral turpitude.
In III Vernier, American Family Laws, sec. 162, p. 112, it is stated:
It is evident that desertion and nonsupport legislation should be regarded as only quasi criminal in character. The primary purpose should not be to punish. The interests of the parties are such that to punish the husband severely by confining him in an institution, no matter how deserving of such punishment he may be, only augments the hardship at which the statute is aimed. A failure to recognize the peculiarities of the problem involved probably explains the fragmentary legislation found in some jurisdictions." [Italics supplied.] Volume IV, pages 60-61 of Vernier contains this further statement: "The policy of the statutes is to enforce the parent's duty to support and to relieve the public from the burden of supporting the child. In furtherance of the first purpose, forty-five jurisdictions make provision for suspension of sentence and probation of the defendant upon his entering into an undertaking to perform a court order directing him to support or contribute to the support of the child. Civil relief is secured by the threat of criminal punishment." [Italics supplied.]
Criminal nonsupport statutes have come to be popularly known as "Lazy Husband Laws." III Vernier, page 112: They have often been attacked on the ground that they result in imprisonment for debt. 1 Schouler, Marriage, Divorce, Separation, and Domestic Relations, 6th ed. (1921), page 855. One convicted under these statutes is not regarded by the public as a convict nor as having served a prison term, but rather as having been confined to "alimony jail."
Much greater obloquy is attached to a bastardy action than to nonsupport proceedings. In the former, suit is brought not only for maintenance but also to establish paternity. Nevertheless the case books are replete with statements that bastardy proceedings are quasi criminal, civil in substance and only criminal in form, and that resort to the criminal law in these proceedings does not stamp the individual as a criminal. It has therefore been the uniform practice of this Board and the Immigration Service to regard a conviction in bastardy proceedings as a nondeportable offense. It follows a multissimo fortiori that a conviction in nonsupport proceedings, where maintenance is the sole issue and paternity is not involved, should not be made the basis of a deportation order.
People v. McFarlaine, 50 App. Div. 95, 63 N.Y.S. 622, 624 (1900); State v. Tokstad, 8 Pac. (2d) 86 (1932, Oregon); Nimmo v. Sims, 13 S.W. (2d) 304 (1929, Arkansas); Eason v. State, 30 Ala. App. 224, 4 So. (2d) 190 (1931); Scott v. State, 173 Ark. 625, 292 S.W. 979 (1927); Commonwealth v. Bondie, 277 Ky. 207, 126 S.W. (2d) 148 (1939); Thatcher v. Hacket, 16 N.J. Misc. 459, 1 A. (2d) 438 (1938); Commissioners of Public Welfare v. Fagan, 259 App. Div. 727, 18 N.Y.S. (2d) 228 (1940); State v. Wright, 9 W.W. Harr. (Del.) 552, 3 A. (2d) 74 (1938); 7 C.J. pp. 966-967; 10 C.J.S., p. 143.
In re H----, 56138/220 (May 1, 1943). In re D----, 56096/344 (Dec. 15, 1941).
Immigration Manual (1943), sec. 655.22, p. 6021.
The enactment of the provisions in section 19 of the Immigration Act of 1917 requiring the deportation of an alien who is sentenced for a single crime within 5 years after entry or for two offenses at any time after entry was designed to reach aliens guilty of serious offenses. In the case where the alien committed more than one offense, it is the criminal of the confirmed type who has committed two serious offenses that the law seeks to deport. This is made evident by the reports which preceded the 1917 Act.
In 1907 an Immigration Commission was appointed to make a full inquiry and investigation into the subject of immigration. In its report, Senate Document No. 747, Sixty-first Congress, third session (1910-11), volume I, page 34, it concluded:
It seems entirely reasonable and just that this country should not harbor dangerous criminals of another country. [Italics supplied.]
And at page 45, it recommended:
To protect the United States more effectively against the immigration of criminals and certain other debarred classes —
(a) Aliens convicted of serious crimes within a period of five years after admission should be deported in accordance with the provisions of House Bill 20980, Sixty-first Congress, second session. [Italics supplied.]
This recommendation became the basis for the deportation provisions in the 1917 Act with respect to the criminal classes.
In Senate Report No. 355, Sixty-third Congress. second session (1914), page 11, it is stated that in section 19:
Provision is made for the deportation of aliens who commit serious crimes within five years after entry to the United States. [Italics supplied.]
Senate Report No. 352, Sixty-fourth Congress, first session (1916), page 15, contains the following pertinent language as to the purpose of the criminal provisions of section 19:
When the act was passed as H.R. 6060 it contained a new provision (still retained, p. 43, lines 1-6) for the deportation of aliens who commit serious crimes within five years after entry, the courts pronouncing sentence being authorized to recommend in any instance that deportation shall not occur (p. 44, line 20, to p. 45, line 2). As the act now stands, the House has added, at the suggestion of its committee (vol. 53, Congressional Record, pp. 5932-5933), a provision intended to reach the alien who after entry shows himself to be a criminal of the confirmed type, such aliens to be deported without limitation on the length of time after entry when they commit a second serious offense (p. 43, lines 6-9). [Italics supplied.]
Accordingly, our deportation laws should be so interpreted as to exclude and deport the dangerous or habitual criminal. The alien who fails to support his minor child may be a lazy and shiftless father, but he certainly is not dangerous nor is he guilty of a serious or grave crime. The types of serious crimes which were in the minds of Congress is indicated in the report of the Immigration Commission, supra. The major crimes listed by the Commission include homicide, burglary, robbery, abduction, kidnapping, rape, blackmail, violent assault, larceny, and receiving stolen property ( Immigration and Crime. S. Doc. 750, 61st Cong. 3d sess. (1910-11), pp. 17, 203-207). These and kindred crimes were considered of a serious nature. It can hardly be argued that nonsupport is a dangerous and serious crime of this type.
Moral turpitude is said to be a vague term and therefore it would seem difficult to state any definition which would serve as an infallible guide for all cases. However, certain general principles enable one to reach an accurate conclusion in the majority of cases.
The lower Court's opinion in U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S.D.N.Y. 1913), affd. 210 Fed. 860, is particularly pertinent. It is there stated that:
"Moral turpitude" is a vague term. Its meaning depends to some extent upon the state of public morals. A definition sufficiently accurate for this case, however, is this:
"An act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man or to society" (20 Am. Eng. Ency. of L. 872).
And, adapting this, we may say that a crime involves moral turpitude when its nature is such that it manifests upon the part of its perpetrator personal depravity or baseness.
We come then to the fundamental inquiry: Does the crime of criminal libel in its nature imply personal depravity or baseness upon the part of its perpetrator? In my opinion, the answer to this question depends upon that which must be shown to establish his guilt. Undoubtedly there may be cases in which the facts will show upon the part of the libeler a malignity of purpose and depravity of disposition conclusively indicating moral turpitude. But if it be unnecessary to establish such purpose or disposition to make out the crime of criminal libel, it cannot be said in its nature to involve them or the conclusion to be drawn from them. If only the persons who publish false and defamatory libels with intent to injure were criminally liable for them, there would be no difficulty in finding moral turpitude in the offense. The evil intent would enter into it. But the law of libel, for the protection of society, goes far beyond this.
Editors and publishers have in the past been held criminally responsible for the publication of libels wholly without their knowledge. In such cases a finding of guilt does not establish moral depravity. And now in England and in this country the same liability exists if the libel came into the newspaper through their want of care. But here the basis of liability is really one of negligence and does not in itself show moral baseness. [Italics supplied.]
A test in determining what crimes involve moral turpitude is whether the act is accompanied by a vicious motive or corrupt mind. Generally speaking malicious and mischievous intention, or what is equivalent to such intention, is the broad boundary between right and wrong, between crimes involving moral turpitude and those which do not.
The Solicitor of the Department of Labor in an opinion dated December 5, 1922 (No. 4/561), refers to this test:
The question of moral turpitude has been considered by the Solicitor at various times, and in 1911, quoting an opinion of February 25, 1907 (2349 — S), when all the authorities were examined and the following definition was submitted as embodying the substance of judicial opinion, it was reaffirmed:
"A crime involving moral turpitude may be either a felony or misdemeanor, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is actuated by malice or committed with knowledge and intention and not done innocently or without advertence or reflection; which is so far contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of social recognition by good living persons; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind." [Italics supplied.]
These criteria have been approved in subsequent opinions of the Solicitor and have been adopted by the courts ( Opinion of Solicitor, Department of Labor, No. 4/593, Mar. 1, 1923; United States ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (D.C.W.D.N.Y., 1929). The latter case held that manslaughter in the second degree in New York did not involve moral turpitude because it was unaccompanied by a vicious motive or corrupt mind.
In U.S. ex rel Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2d 1931), it was said:
An attempt involves specific intent to do the substantive crime * * * and if doing the latter discloses moral turpitude, so also does the attempt, for it is in the intent that moral turpitude inheres. See United States v. Warden, 45 F. (2d) 204, 205 (D.C. Pa.). [Italics supplied.]
A vicious motive or a corrupt intent is not an essential element of the crime of nonsupport in Ohio, nor in most States. Good faith and honest motives are immaterial to the issues raised under the statute.
Generally a wicked intent is not an essential element of the crime of failing to support a child. Under most statutes penalizing neglect of or failure to furnish necessaries for children it is sufficient if every act of commission or omission necessary to constitute the crime is knowingly done, irrespective of the actor's motive or intent. There is, moreover, authority for the view that guilty intent, where requisite, may be inferred from neglect of the parental duty. In accordance with these principles, a parent or person standing in his place may incur criminal liability under many such statutes for such neglect of his child, or such omission to supply it with necessaries, as the statute contemplates, even though he acts in good faith or from honest motives, is ignorant of the exigencies of the situation, or honestly entertains the belief that he is doing the best he can under the circumstances or that his course of conduct is entirely proper and should, for the best interests of the child, be pursued in preference to that required by the policy of the statute (39 Am. Jur., pp. 762, 763). [Italics supplied.]
In the case of T---- N----, No. 55693/375, July 23, 1930, the Board of Review ordered the deportation of an alien on the ground that he had been sentenced to imprisonment for crimes involving moral turpitude. One of the crimes was failure to support his wife and child as defined by section 4026 of the Revised Statutes of Missouri 1929. The pertinent portion of this statute is as follows:
Sec. 4026. Abandonment of wife or children — penalty — evidence required, — If any man, shall, without good cause, abandon or desert his wife or shall fail, neglect or refuse to maintain and provide for such wife; or if any man or woman shall, without good cause, abandon or desert or shall, without good cause, fail, neglect or refuse to provide the necessary food, clothing or lodging for his or her child or children born in or out of wedlock, under the age of sixteen years, * * * then such person shall * * * be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. * * * (R.S. 1919, No. 3274. Amended Laws 1921, p. 281.)
A comparison of this section with section 13008 of the Ohio code, will show that the Missouri statute is the more narrow in its application. The Missouri statute requires that the abandonment shall be "without good cause," which gives far greater latitude as to possible defense than the Ohio statute, which contains no such condition.
Despite the relatively narrow application of the Missouri statute, when habeas corpus proceedings were brought, the district judge for the Eastern District of Missouri held that failure to support a wife and child under this statute was not a crime involving moral turpitude and the alien was discharged from custody. See No. 55693/375 containing memorandum of the oral opinion delivered March 24, 1931, wherein the court said:
* * * When I look at the reasons which I find in the textbooks for the passage of laws of this character, I am more than ever convinced that it does not inherently, within the definition, involve moral turpitude. There is but little uniformity in the acts of the several states. Some of them make imprisonment conditional, that is to say, conditional upon the compliance of defendant with the order of the court requiring him to support the abandoned wife. The primary purpose of these statutes is undoubtedly to protect the public against the necessity of supporting the wives and children of husbands who are able, but who neglect or refuse to do so. The secondary purpose is said to be to relieve the wives and children from the necessity of supporting themselves. In many jurisdictions it is said that the chief object of these statutes of nonsupport is to provide directly for neglected wives and children, and by the fear of punishment, to deter husbands and fathers from leaving their families to undue privation. Other reasons may be found in the books, but these seem to be those which largely dominated legislative action in carrying out the offense (30 C.J. 1098 et seq.).
Moreover, it was the unanimous opinion of the United States attorney, the district director and the Solicitor of the Department of Labor that it would be useless to appeal the decision of the district court. The solicitor said in part (No. 4-2682, Apr. 16, 1931):
This section of the Missouri Revised Statutes, section 4026, is extremely broad, so much so that it appears clearly to this office that convictions thereunder may be had without the offense in anywise involving moral turpitude. The statute creating, as it does, purely a statutory crime unknown at common law, this office believes that Judge Faris was unquestionably correct in holding that the crime for which the alien was convicted does not involve moral turpitude and, therefore, that portion of the Department's charge against the alien cannot be supported in law. This office joins with the United States attorney, the district judge and the District Director of Immigration of the St. Louis District, in concluding that it would be a useless proceeding to take an appeal from the decision of the district court.
If the Missouri statute is phrased too broadly to permit a holding that the crime therein defined involves moral turpitude, it is a fortiori that the Ohio crime also does not involve moral turpitude.
We have previously determined in the cases of C---- M---- (file No. 56080/880, 1943) and A---- L---- (file No. 56063/548, 1942) that a conviction under the Ohio statute does not involve moral turpitude. Similar statutes in other jurisdictions have likewise been administratively held to be free of moral turpitude (sec. 270, California Penal Code, In re Y----, file No. 56064/472 (1941); In re S----, file No. 56080/651 (1942); sec. 242 (3), Canadian Criminal Code: In re H----, file No. 56127/824 (1943).
On the other hand, earlier decisions of this Board and its predecessor, the Board of Review, had held that statutes similar to the one under discussion did involve moral turpitude (ch. 83, Colorado Statutes Annotated, 1935, In re S----, file No. 56081/222; sec. 270, California Penal Code, In re P----, file No. 55866/197).
The dissent attempts to distinguish the foregoing authorities and emphasizes with repeated stress that the instant case is one of willful refusal to support minor children and that these children were adjudged neglected. The term "willful" merely connotes the absence of mistake or inadvertence (see, supra, Note 11). The finding that the children were neglected is not properly a part of the criminal judgment, is not a judgment against the alien but rather a decree pertaining to children and is merely a reiteration that the children were not supported by the father (Ohio Gen. Code, sec. 1639-3, pars. 2-4; and see infra).
Careful examination of the N---- case and our prior decisions clearly indicates that they are controlling precedents for the views advanced herein.
In the N---- case, the charges presented against the alien were that he "unlawfully, wilfully and without good cause, did abandon or desert, and unlawfully, wilfully and without good cause, fail, neglect or refuse to maintain and provide the necessary food, clothing or lodging" for his wife (Count One) and for his infant child, age 1 year (Count Two). He was found guilty on both counts. The court found that he was not guilty of an offense involving moral turpitude.
In the S---- case, supra, nonsupport proceedings were instituted against the alien by his wife, at the alien's suggestion because he desired to go to a road camp. He was charged with omitting "to furnish necessary food, clothing, shelter, and medical attendance" for his minor children " wilfully and unlawfully and without legal excuse." He was convicted, sentenced for 1 year, and compelled to work on the public highways. It was held that since a conviction might result under the statute although the children were not in need, the crime did not involve moral turpitude. The same situation exists under the facts in the instant case, where the statute and charge are couched in much broader terms.
In the Y---- case, supra, the charge placed against the alien was that he "did then and there wilfully, unlawfully, and without lawful excuse, omit to provide the necessary food, clothing, shelter, medical attendance, and other remedial care for said minor child." It was held that a conviction might result for conduct which no substantial part of the community would consider base or depraved because criminal liability was not avoided by reason of the fact that the mother or any other person was supporting the child in question.
In the H---- case, supra, the alien was convicted in Canada for failing to provide necessaries for his minor children. We held that the offense did not involve moral turpitude. We pointed out that under Canadian law a conviction might result even though the child was well provided by others and that the Canadian courts had stated that negligence on the part of the parent was sufficient to support the offense and that the criminal law was utilized merely to enforce a civil liability.
In the M---- case, supra, the Ohio statute, with which we are now concerned, was involved. We held that moral turpitude did not inhere in a violation of the statute because a father might be convicted, although his child was amply supported, if the child were not in fact being supported by the father.
In the L---- case, supra, where the record of conviction was identical with that presented herein, we again had occasion to consider the Ohio nonsupport statute. In holding that the crime did not involve moral turpitude, we stated that the statute permitted a conviction whether or not the child was being supported by others, and that convictions had in fact been obtained in cases where the child was being supported by the mother. We also called attention to the fact that Ohio decisions stressed that the duty of a father to support his minor children was a personal and continuing one, not to be avoided by contract with third parties (including the mother), and was a duty primarily owing to the public rather than to the child.
The instant case is indistinguishable in principle and in fact from the precedents cited above. The statute and the charge in the instant case is much broader than those presented in other states and a finding that moral turpitude is not involved follows more readily.
The conviction before us does not necessarily lead to the conclusion that respondent committed an offense accompanied by a vicious motive or a corrupt mind. It does not necessarily indicate that an act of baseness or depravity has been committed. The crime does not in its essence involve moral turpitude.
If a crime does not in its essence involve moral turpitude, a person found guilty of such crime cannot be excluded because he is shown, aliunde the record, to be a depraved person" ( U.S. ex rel. Mylius v. Uhl, 210 F. 860, 863 (C.C.A. 2d, 1914).
Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his crime was immoral * * *. Conversely, when it does, no evidence is competent that he was in fact blameless ( U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2d, 1931)).
It is the moral obliquity of the crime and not of the individual that is the test under the law. The Ohio statute is so framed that an individual may be convicted where he has acted in good faith and with honest motives, where the child is not destitute or in need of support from the father, where the child has not become and is not in danger of becoming a public charge, and where the health or life of the child has not been impaired in any wise. A conviction under this statute is therefore not a conviction for a crime involving moral turpitude and we may not inquire into the specific conduct of the defendant in this particular instance. It might be noted, nevertheless, that the indictment in this case does not add any descriptive facts, but merely paraphrases the wording of the statute.
By our conclusion, we do not criticize the wisdom of the various States in enacting such criminal legislation, nor do we say thereby that the respondent is a person of good moral character or that he is entitled to citizenship. The requisite good moral character for citizenship is and should be of high standard. Deportation, on the other hand, is not authorized under the law because of the failure of an alien to maintain good moral character. Subsequent to entry not only conviction but sentence for more than 1 year for a crime involving moral turpitude is required for deportation. If more than 5 years have elapsed since entry, two such convictions and sentences are necessary. Citizenship may properly be denied to an alien if he has violated any law, even one not amounting to crime. It is obvious that residence in the United States, and citizenship in the United States, are not founded upon equal or even similar moral standards.
Cf. IV Vernier, supra, p. 62-63: "In some instances it might be thought undesirable to place the stigma of criminal prosecution upon the parent, and in some cases relief might be obtained more easily and expeditiously if the prosecution of the suit were in private hands."
We recognize the high social obligation imposed upon parents to support their children and we realize the urgent necessity for curbing juvenile delinquency. However, these matters are not the issues before us. Deportation of an alien will not compel or even afford him an opportunity to fulfill his obligation. As reported by the 1942 Annual Bulletin, volume XIII (No. 2) of the Uniform Crime Reports, page 90, issued by the Federal Bureau of Investigation, boom conditions and "easy money" in the hands of youthful persons, together with the let-down in supervision at home are stated to be the prime factors in causing juvenile delinquency. (See also 1941 Report of the New York State Bar Association, p. 399.) Nonsupport is not considered as a contributing factor.
The dissent would have us believe that if this alien were not deported that the enforcement of nonsupport statutes would terminate, that fathers would cease to support their offspring, and that general lawlessness would prevail. In the first place, the issue before us is not whether we should undertake to enforce the criminal laws of the various States, but rather whether we should deport for violation of a nonsupport statute, a crime which has previously been held not to involve moral turpitude because it does not necessarily and inherently involve an evil intent. This is the test which has been applied and followed by interpretations of the courts, this Board, and the Immigration Service. Secondly, relatively few cases of nonsupport by aliens have been presented to this Board. The administration of nonsupport laws will gain little by imposing the additional sanction of deportation. The Juvenile and Domestic Relations Courts, experienced in delicate matters of domestic relations, are fully capable of imposing the proper punishment upon those guilty of violating nonsupport laws. They are fully discharging this responsibility in keeping families together and making lazy fathers support children who are destitute or in need.
In the case before us, the alien was divorced. His former wife remarried and took the children with her. Two years after the divorce she filed a complaint which alleged that her former husband was not supporting the children. There is no allegation that the children were in need, or that they were not adequately cared for. Under Ohio law, the fact that the children were being cared for by the mother or the foster father is immaterial. There is no allegation that demand was made upon the father to contribute to support of the children. The good faith of the alien in assuming that the children were not in need and were being well supported by the mother or the foster father is likewise immaterial under Ohio law. Emphasis is directed by the dissent to the fact that this case involves a willful refusal to support. As has been indicated supra, (p. 4, note 11, and p. 13) willful merely connotes the absence of accident or inadvertence. It does not supply the evil intent necessary to a finding of moral turpitude. It does not turn this case into one where there has been a refusal to support children who were in need or destitute. It does not negative the good faith of the alien in assuming that his children were being well provided in the new home which his divorced wife had established for them with her present husband.
The dissenting opinion lays great stress upon the court's adjudication that the respondent's children were neglected and that specific provision was made to commit them to the custody of their mother. These matters are equitable and procedural (Ohio Gen. Code, sec. 1639-30). They can have no possible bearing upon whether the crime as defined by statute and of which the respondent stands convicted involves moral turpitude. Furthermore, a "neglected" child is merely a child whose parent or parents have not supported it and is not necessarily a child in destitute or necessitous circumstances. A child is neglected if any person chargeable with its support, care and education fails to make such provision, notwithstanding that others are adequately caring for the child. This view was clearly expressed by the Supreme Court of Oklahoma in the case of In re Reed, 189 Okla. 389 (1941), where a mother (the protestant in the case) challenged a lower court's finding that her child was neglected and dependent. The mother contended that the child, though not supported by her, was being properly cared for by others. Said the court (p. 392):
* * * The mere fact that it was enjoying proper care in the home of others and was therefore not a homeless, destitute, or abandoned child does not mean that it was receiving proper parental care of guardianship.
* * * * * * *
Protestant takes the position that since third parties, or "other persons" were properly caring for the child, it could not be said to be neglected under the provision relating to proper parental care. But this cannot be a proper view where, as here, the child is placed with others and the obligation to pay for its upkeep is abandoned by the parent.
Statutory provision for finding a child delinquent, neglected, or dependent is merely a condition precedent to the exercise by the court of its equitable powers to place such child in the custody of a person, institution or home which it determines to be for the best interests of the child. Such provision is found in Ohio in the Juvenile Court Code. Certainly the fact that a court may exercise certain equitable powers over neglected, dependent or delinquent children cannot affect or alter the essential elements of a crime which is defined in a different and wholly unrelated portion of the General Code of Ohio.
The sole issue presented here is whether a violation of the broadly worded Ohio nonsupport statute involves moral turpitude where there is no showing that the children are in need and where good faith on the part of the parent in assuming that the children are well supported is immaterial.
The case of White v. State, 44 Ohio App. 331 (1933) is particularly pertinent. In that case, an Ohio Court of Appeals discussed the history and intent of the Ohio legislation, entitled "An Act to compel parents to maintain their children," of which section 13008 was originally a part. In holding that bad motive of the parent was not an element of the crime, the court declared that "The purpose of the act was not to penalize the moral delinquencies of parents, * * *". The Ohio statute, then, requires no bad faith or improper motive and punishes no moral delinquency. Its violation is, therefore, not indicative of moral turpitude.
The majority of this Board is of the opinion that the offense in question is not a conviction for the type of crime within the contemplation of the Immigration Act, that it is merely a quasi crime, a proceeding to enforce a civil obligation by criminal sanctions, and, hence, that a violation of the statute does not involve moral turpitude. We are further of the opinion that the issue presented here is controlled by the Ohio cases cited herein, has been judicially settled by the N---- case and administratively established by prior precedents of this Board.
Since the respondent has not been twice sentenced to imprisonment for the commission of crimes involved moral turpitude, he is not deportable under the immigration laws.
Findings of Fact: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the respondent is an alien, a native and citizen of Czechoslovakia;
(2) That the respondent last entered the United States at Boston, Mass., on February 13, 1921;
(3) That the respondent was convicted in Ohio on March 7, 1938, of the crime of failing, neglecting, and refusing to care for, support, maintain, and educate his two minor citizen children, and was sentenced to serve, and did serve, a term of imprisonment of 1 year;
(4) That the respondent was convicted on June 15, 1940, in Ohio of the crime of housebreaking, with intent to commit larceny, and was sentenced therefor and did serve a term of imprisonment of more than 1 year in the Ohio State Penitentiary.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the crime of failure, neglect, or refusal to provide a minor child with necessary or proper home, care, food, and clothing, as defined in section 13008 of the General Code of Ohio does not involve moral turpitude;
(2) That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been sentenced, subsequent to May 1, 1917, to imprisonment more than once for a term of 1 year or more for the commission, subsequent to entry, of a crime involving moral turpitude, to wit: Nonsupport of minor children, and housebreaking with intent to commit larceny.Order: It is ordered that the warrant of arrest be canceled and the proceedings closed.
The order directed by the majority opinion in the case of K---- E----, certified to me because a dissent had been recorded, is hereby affirmed.
The very important question to be determined in this case is whether an alien father who is able to care for and support his minor children and unlawfully fails, neglects, and refuses to do so, causing them to become neglected children, commits a crime involving moral turpitude, which would furnish one of the statutory grounds for deportation, he having been duly convicted of this crime upon his plea of guilty. He has also been convicted of the crime of housebreaking, no question being raised as to the latter being a crime involving moral turpitude. To sustain the alien's deportability on the charge stated in the warrant of arrest, it must be held that both crimes for which he was convicted and sentenced to a term of imprisonment of 1 year or more, are morally turpitudinous.
The Presiding Inspector and District Director both take the view that the crime of nonsupport of which the alien was convicted in this case is a crime involving moral turpitude.
Mr. J.L. Bixler, senior legal examiner, who originally wrote the decision, in a note to this Board, said: "Although I have written this case in accordance with decision in a similar case — 56080/880 of January 21, 1943 — I feel that the indictment in this case clearly indicates that this offense for which the alien was convicted `being able to care for, support, maintain,' etc., involved moral turpitude. J.L.B."
The majority of the Board are of the opinion that the crime of nonsupport for which the alien was convicted does not involve moral turpitude.
After giving the case much study and consideration, I am impelled to conclude that under the facts existing in this case, the offense in question is one involving moral turpitude and I, therefore, agree with the views to that effect to which I have alluded.
The proceedings were instituted by affidavit filed and sworn to before the judge of the county juvenile court, which serves the same purpose as, and has all the legal effect of, an indictment or information, the charge laid reading as follows:
that one K---- E----, the father, and charged by law with the care, support, maintenance, and education of K---- and Z---- E----, minors under the age of eighteen years, to wit: of the ages of 12 and 10 years, and being able to care for, support, maintain, and educate the said minors, did unlawfully fail, neglect, and refuse to care for, support, maintain and educate the said minors, he the said K---- E----, well knowing the said K---- E----, et al., to be such minors; contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio. [Italics supplied.]
The judgment of conviction reads, inter alia, as follows:
This matter came on to be heard on the complaint charging K---- and Z---- E---- with being neglected children, and upon the charge that K---- E----, father, fails to support or to contribute to the support of said children. It appearing that all citations and warrants have been served; that all persons interested are now before the Court and the defendant, K---- E----, being asked whether or not he is guilty of the offense charged against him, says he is guilty. The Court having heard the evidence finds that the minors herein, K---- and Z---- E----, are neglected children, and that the said K---- E----, the father, has failed, neglected, and refused to care for and support or to contribute to the support of said children as charged. It is ordered that the said minors be committed to their mother. It is further ordered that the defendant be committed to the Cleveland Workhouse, Warrensville, Ohio, for the term of one year. [Italics supplied.]
Briefly, the facts are as follows: The wife divorced the alien father in 1936; he had been arrested eight or nine times, mostly on the ground of failing to support his family; he was sentenced several times to the workhouse at Warrensville, Ohio; in the case which we are considering as a basis for deportation, the two minor children, aged 10 and 12 years, were charged and adjudged in the juvenile court to be neglected children under the Juvenile Court Code of Ohio (sec. 1639-3); the alien father was charged with the willful failure, neglect, and refusal to support them or to contribute to their support, for the period from January 1, 1936, to February 28, 1938, a period of over 2 years, although he was able to support them; on March 7, 1938, the alien father pled guilty to the crime as charged and was sentenced to the workhouse at hard labor for the term of 1 year; and in the judgment of conviction it was "ordered that the said minors be committed to their mother". It does not appear from the record what provision has been made in the divorce action in regard to the support and maintenance of the children. However, there is a strong implication that they had been awarded into the care and custody of the father, in view of the proviso ordering them to be committed to the mother, which would not have been done if they had already been in her care and custody. The mother had remarried.
The alien was convicted for a violation of section 13008, of the Ohio General Code, which reads as follows:
Neglect to provide for child or pregnant woman, penalty: Whoever, being the father or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this state, fails, neglects or refuses to provide such child or such woman with the necessary or proper home, care, food and clothing, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.
It is further provided in section 13008-1 of the Ohio General Code that lack of property or earnings, or the inability to secure employment or physical incapacity to perform labor, is a complete defense to a prosecution for violation of section 13008, and reads as follows:
SEC. 13008-1. Inability to provide. Upon trial for any offense defined in the foregoing section, the defendant shall be acquitted if it appear that he was, because of lack of property or earnings, or the inability to secure employment, or the physical incapacity to perform labor, unable to provide such child or such woman with necessary or proper home, care, food and clothing.
Section 1639-3 of the Juvenile Court Code of Ohio, which has a direct and most important bearing upon this case, provides as follows:
SEC. 1639-3. "Neglected child" defined. For the purpose of this chapter the words "neglected child" include any child:
1. Who is abandoned by its parents, guardian, or custodian.
2. Who lacks proper parental care by reason of the faults or habits of its parents, guardian, or custodian.
3. Whose parents, guardian, or custodian neglects or refuses to provide it with proper or necessary subsistence, education, medical or surgical care, or other care necessary for its health, morals, or well-being.
4. Whose parents, guardian, or custodian neglects or refuses to provide the special care made necessary by its mental condition.
5. Who is found in a disreputable place, or visits or patronizes a place prohibited by law; or who associates with vagrant. vicious, criminal notorious, or immoral persons.
6. Who engages in an occupation prohibited by law, or is in a situation dangerous to life or limb or injurious to the health or morals of itself or others.
This statute became effective August 19, 1937, and is, therefore, applicable to the instant case. The annotation contains this comment: "This section is new. The definition is taken almost entirely from the standard juvenile court law. These subdivisions are clear and unambiguous. In determining whether a child is neglected or dependent, the following distinction may be kept in mind: The word `neglect' indicates a wilful disregard of a duty on the part of a parent, guardian, or custodian toward a child. `Dependency' indicates the inability of a parent, guardian, or custodian to discharge his legal responsibility, or the nonexistence of such persons."
It is highly significant that this section 1639-3 defining "neglected child" is placed in the Juvenile Court Code in between section 1639-2 defining "delinquent child" and section 1639-4 defining "dependent child." Manifestly, the status of a "neglected child" is that of a semidelinquent child, and as defined, is more serious and perilous to the child than that of a child which is merely dependent.
We are thus considering a case unlike and distinguishable from most child nonsupport cases. We have before us a case in which the father, although able to support his minor children, neglected and refused to support them or contribute to their support for a period of over 2 years, causing them to become and be adjudged as neglected children, resulting in his prosecution in the Juvenile Court and his plea of guilty to the crime charged, whereupon the neglected children were committed to the care of their mother and the father was sentenced to the workhouse at hard labor for a term of 1 year.
The foregoing facts, which have been judicially determined, refute and disprove the argument of the majority and the benevolent hypothesis which is invoked in the alien father's behalf, i.e., that possibly he did not know that the children were neglected, that possibly no demands were made upon him and that possibly "he thought they were being well provided for in their new home," which is no legal defense. As we have noted, the only statutory defense in Ohio is inability to support, which was negatived by the averments in the complaint and the recited and adjudicated facts in the judgment of conviction that the father possessed the ability to support his children and wilfully failed, neglected and refused to do so for a period of over 2 years, causing them to become " neglected children."
The law attempts to protect children from cruelty and neglect not only by removing them from the custody in which they have been abused but by statutes providing punishment for the offender (14 R.C.L., par. 46, p. 275). If a father treats his child with cruelty or neglect, he thereby forfeits his right to retain its custody (14 R.C.L., par. 14, p. 599). The higher and more important purpose of the legislature in passing such a law (nonsupport statute) is to provide directly for neglected wives and children, and to punish the infliction of the wrong upon them, and, by fear of punishment, to deter husbands and fathers from leaving their families to endure privation (8 R.C.L., p. 307).
The writer takes the position, and will endeavor to maintain it throughout the consideration of this case, that the crime to which the alien pled guilty is probably one of the most serious crimes, both from a legal and sociological viewpoint with which we have to deal, and that under the adjudicated facts in this case the crime is one which involves moral turpitude. This case should, therefore, be approached realistically and concretely rather than theoretically and in the abstract.
Juvenile delinquency has become a grave community problem and this is certainly no time to view lightly the crime committed by aliens who neglect their children, which contributes to juvenile delinquency, nor to treat the crime as a civil trespass instead of a major crime against childhood and the community. Economic insecurity is the frequent cause of juvenile delinquency, according to the Children's Bureau, United States Department of Labor, and in their recent publication Controlling Juvenile Delinquency (p. 13), they make this statement:
Many delinquents come from families whose financial status is insecure. As a result of this insecurity, a child not only may be deprived of the necessary physical requirements of food, clothing, and shelter, which affect his adjustment vitally, but also may suffer other serious deprivations. * * * Lack of money may keep him from participating on an equal basis with other children in school, church, and recreational activities. Families may be deprived of support because of absence of the father in the armed forces or because of his death or illness.
The novel argument is advanced by the majority that because in this case the parents are divorced, and the children have a foster father, that the natural father is thereby relieved of his legal and moral obligation to support his children. They would assume that the foster father is, perchance and forsooth, discharging the duty which rests upon the natural father and that possibly the children are not in need of support by the natural father, because possibly the foster father has evidenced more regard and consideration for their welfare than the natural father. Even if such were the facts, the guilt of the natural father would not be mitigated or lessened thereby, according to the great weight of judicial authority. Of course, in the instant case, the complete answer to this argument is furnished by the real facts established by the record, i.e., that the children were adjudged in the juvenile court to be neglected children due to the fact that they were neglected by the alien father, who altho able to support them failed, neglected and refused to support them and pled guilty to the crime which he had committed.
The remarriage of the mother does not excuse any failure of the father, for the law does not impose upon ( or transfer to) the stepfather the duty of supporting the child ( Gerber v. Beuerline, 17 Oreg. 115, 117, 19 Pac. 849; In re Harris, 16 Ariz., 1, 140 Pac. 825, Ann. Cas. 1916 A, 11750; 20 R.C.L. 594, 13 R.C.L. 1189).
Indeed, it has been held in Ohio that there is no duty upon the part of the stepfather to provide for the support of his stepchildren ( State v. Barger, 14 Ohio Appeals 127).
By the weight of authority, a father is not relieved by the decree of divorce from criminal responsibility for a failure to support his child (22 A.L.R. 795, et seq., note).
The decisions holding the father to be responsible for the support of the children where there is no provision therefor in the divorce decree, founding the rule on his natural and legal obligation to take care of his children, who lose none of their claims on him by reason of the divorce between the parents, and the mere fact that the decree is in his favor and no provision is made for their care is regarded as insufficient to exonerate him from his duty to provide for them (Ann. Cas. 1918, c. 939, note).
The children are not responsible for the unfortunate differences which have caused the estrangement and separation of the parents, and ought not to suffer therefrom. Their rights do not depend on the degree of culpability of one or the other parent, and their needs must be provided for whether the existing conditions have been brought about by the fault of one or the other or both parents ( Jacobs v. Jacobs, 136 Minn. 190, 161 N.W. 525, L.R.A. 1917 D, 971).
The divorce does not relieve the father of his duty to support his children and the primary duty to support the children is upon the father. On the ancient and academic theory that the husband has been deprived by the decree of the custody, society, and services of the child, which was the foundation of his common-law liability for its support, some authorities hold to a contrary rule, and assert that there is no liability on the part of the father for his children's future support, except as provided for in the divorce decree or as may be imposed by its modification, either to the wife or to a third person. Assuming that there is any force in the argument based upon the common law doctrine referred to, it has been held that the father by his own wrong forfeits certain of his common-law rights, and that he will not be permitted to plead such wrong as an excuse for relieving himself from the obligation to support his children. The just and more natural reason, however, is that it is not the policy of the law to deprive children of their rights on account of the dissensions of the parents, for causes of which they are innocent, and by proceedings to which they are not parties. The legal and natural duty of the father to support his children is not to be evaded by him on the ground of his own wrongdoing, or even of any dissensions whatsoever with his wife. A natural father would not think of doing so, and an unnatural one should not be permitted to do so (8 R.C.L., p. 481).
It is significant that the constitutionality of criminal nonsupport statutes is upheld on the ground that the performance by a husband and father of the legal duties which he voluntarily assumes in contracting marriage is a matter which not only affects the particular parties in interest but the public at large, as affecting the general welfare (13 R.C.L., p. 1191).
It has even been held that a minor husband who is able by his labors to support his wife and child may be prosecuted criminally for withholding that support ( Land v. State, 71 Fla. 270 (1916), L.R.A. 1916 E. 760).
The father's obligation to support his children is the same after divorce as before, unless the decree of separation provides otherwise ( Hector v. Hector, 51 Wash., 434, 439, 99 Pac. 13, 15).
Cases concerning the support of children after divorce of the parents may be divided into three classes: (1) Where the decree is silent as to both the custody and maintenance of the child; (2) where the decree provides for the custody of the child but is silent as to its maintenance; and (3) where the decree not only provides for the custody but also requires the payment of money for the maintenance of the child. In the first class of cases, the general rule is that the obligation of the father is, after divorce, exactly the same as it was before dissolution of the marriage contract ( Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, 2 L.R.A. (N.S.) 851, 114 Am. St. Rep. 695, 7 Ann. Cas. 901). In the second class of cases, there is a difference of judicial opinion. One line of authorities proceeds upon the theory that the duty of the father to support the child and the obligation of the latter to serve the former, presents reciprocal rights and duties and that, therefore, to award the custody of the child to the mother is to deprive the father of the child's services, and hence, the loss of the right to the services of the child operates as a release from the duty to support; but a majority of the well-considered precedents denounce and condemn this cold and illogical doctrine, which not only ignores the rights and welfare of the child but also enables an unfaithful husband and unnatural father to compel his wife to divorce him, on account of grievous wrongs done by him, with the assurance given to him in advance that when she does divorce him she will not have lost the maternal instinct, but will cling to the child, and thus enable him further to wrong her by cowardly casting his burden upon her; for the great weight of judicial authority is to the effect that a father is not released from his obligation to support his child by reason of the fact that the mother has secured a divorce and been awarded the custody of the child by a decree which makes no provision for the child's maintenance ( Evans v. Evans, 125 Tenn. 112, 140, S.W. 745, Ann. Cas. 1913 C, 294 (17 Gates, 1911); Spencer v. Spencer, supra; Alvey v. Hartwig, 106 Md. 254, 67 Atl. 132, 11 L.R.A. (N.S.) 678, 14 Ann. Cas. 520; Buckminster v. Buckminster, 38 Vt. 248; Gibson v. Gibson, 18 Wash. 489, 51 Pac. 1041; 50 L.R.A. 587; 9 R.C.L. 480; See also McFarlane v. McFarlane, 43 Ore. 477, 485, 73 Pac. 203, 75 Pac. 139, and Miller v. Miller, 67 Ore. 359, 367, 136 Pac. 15). If the decree provides for both the custody and maintenance of the child, the action naturally falls in the third class of cases. It is neither contended nor even suggested that the decree in terms releases the father from any obligation to contribute to the support of the child, and hence, from whatever angle one may view the problem, we find the father accompanied with an obligation to contribute to the support of the child; and the statute says that for a failure to perform that duty the defendant may be punished.
Clearly, the contention, that the crime to which the alien father pled guilty in this case is less moral turpitudinous because the wife remarried, is without merit and without any sound legal basis.
Considerable space is devoted in the opinion of the majority to an interesting discussion of the genesis, history, and evolution of the crime of nonsupport. I believe that the entire subject has been well summarized by the courts and I shall content myself with quoting briefly from only a few of the decisions.
Notwithstanding some jurists may say that the theoretical ultimate purpose of nonsupport statutes is for the benefit of the public; and others may take the view that this sort of legislation is for the benefit of the wife or child, yet all can probably concur in the statement that the practical result sought to be accomplished is to compel the husband, and the father, when able, to do his full duty. In State v. Gilmore, 88 Kan. 843, 129 Pac. 1126, 47 L.R.A. (N.S.) 226, the court pithily says: "The object of the statute was to compel the husband, if he were able to do so, to support his wife and children."
Our nonsupport statute does not create a new duty; nor does it enlarge a previous obligation. When it enacted the statute, the Legislature did not attempt to define the duty of the father or husband, but it assumed that the law had already imposed a duty upon him, and acting on such assumption, the lawmakers wrote and adopted a statute penalizing the father and the husband for any failure to perform such existent duty ( People v. Pierson, 176 N.Y. 201, 68 N.E. 243, 63 L.R.A. 187, 98 Am. St. Rep. 666). We must, therefore, look beyond chapter 136, Laws 1917, to ascertain the legal duty imposed upon fatherhood.
It is the legal duty of a father to support his child. Some early American cases like Kelley v. Davis ( 49 N.H. 187, 189, 6 Am. Rep. 499, 501), hold that there is no legal obligation on a parent to maintain his child independent of the statutes; but this narrow and unnatural doctrine is repudiated by the great majority of American courts (citing a long list of cases, State v. Langford, 176 Pac. (Ore.) 197-200).
In the case of State v. Walker ( 136 Pac. 215-16), the Supreme Court of Kansas said:
The purpose of the desertion statute was stated by the trial court in instruction No. 6 in the language used by this court in the case of State v. Gillmore ( 88 Kan. 835, 129 Pac. 1123). It is concerned with the marital duty of a husband to support his family. It is perfectly well understood that this duty is not discharged except by support and maintenance in the moral and legal sense of those terms, having regard to the situation, mode of life, estate and social rank, and condition of the persons concerned. A man is not permitted to degrade his wife to the level of the brutes. Sustenance which barely meets animal needs, which does no more than relieve the pangs of hunger, cover nakedness, and afford shelter from the elements, is not support or maintenance. He is obliged to provide such a place of abode, such furniture, such articles of food, wearing apparel, and use such medicine, medical attention, and nursing, such means for the education of children, and such social protection and opportunity as comport with health, comfort, welfare, and normal living of human beings according to present standards of civilization, considering his own means, earning capacity and stations of life. These notions are rooted in the common conscience of the people.
In referring to the statute, the court said:
Its object is to insure the observance of a high moral and social duty. It is remedial in purpose, although it provides for the infliction of a severe penalty, and it must be liberally construed in order that the legislative intent may be accomplished.
In referring to the legal duty of the father to support his child, the learned authors of the text of Ruling Case Law have well said:
This duty is recognized and discharged even by the higher orders of the animal world, and it would seem to be prescribed as to the human father by the most elementary principles of civilization as well as of law (20 R.C.L., par. 30, p. 622).
The purpose of the nonsupport statutes is both remedial and punitive, and the assertion repeatedly made in the majority opinion, that it is not inherently a serious offense, is not well founded. It is denounced as a crime in the various States, and in most jurisdictions the penalty is severe. In determining whether the crime is one which involves moral turpitude, we are confronted with the fact that the term "moral turpitude" is not clearly defined in the law and is susceptible of varied construction.
The standard by which a crime is to be judged regardless of where committed is that prevailing in the United States as a whole regarding the common view of our people concerning its moral character. According to this standard, any crime which involves an act intrinsically and morally wrong and malum in se, or an act contrary to justice, honesty, principle, or good morals is a crime involving moral turpitude (39 Op. Atty. Gen. 95).
In State v. Horton (N.C.), 51 S.E. 946, the court said:
An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community, whereas an act malum prohibitum is wrong only because made so by statute. For the reason that acts malum in se have, as a rule, become criminal offenses by the course and development of the common law, an impression has sometimes obtained that only acts can be so classified which the common law makes criminal; but this is not at all the test. An act can be, and frequently is, malum in se, when it amounts only to a civil trespass, proved it has a malicious element or manifests an evil nature or wrongful disposition to harm or injure another in his person or property (Bishop Criminal Law, vol. 1: 332).
It is not wholly without significance that the Supreme Court, in considering whether unlawful contracts involving moral turpitude are enforceable, and whether a court of equity will compel restitution of property transferred under such unlawful contract upon repudiation thereof, has said:
It seems to be true, that the distinction between " malum prohibitum" and " malum in se" (which never had the support of just reason) has disappeared Pullman Palace Car Co. v. Central Transp. Co., 65 F. 158, 164.
One cannot read the more recent decisions and not arrive at the conclusion that the modern tendency of the courts is to treat all crimes according to the degree of harm and injury which their commission causes to the public and to the individual victim, regardless of technical and cramped distinctions which have rendered safeguarding of the public interest more difficult.
In the case under consideration, it is highly important to bear in mind that the alien although able to support his two minor children who were of very tender age, failed, neglected, and refused to do so for a period of over 2 years, and caused them to become neglected children, as adjudged by the juvenile court. In this respect — ability to support coupled with refusal to support — it is distinguishable from the cases cited in the majority opinion. Is a father who is able to support his children and refuses to do so guilty of conduct which is harmful and injurious to the children and to the public? Is this conduct morally wrong and contrary to good morals? If so, then he has committed a crime which involves moral turpitude.
This precise question has never been decided by any court, which may indicate that it is has never been questioned that the crime is morally turpitudinous. The only case which comes close to deciding the question is the N---- case, which is cited and strongly relied upon by the majority to sustain their position.
The N---- decision is a "wild cat" case, unreported in the books, and upon investigation will be found to be a very poorly reasoned decision.
The court said, after drawing attention to the fact that the crime of "wife abandonment" was a misdemeanor under the Missouri statute:
Most of the States of the Union now have statutes denouncing wife abandonment and making it a crime. So far as I have observed, the particular offense denounced by section 4026, supra, is everywhere, in all the States, a misdemeanor. Missouri, as well as other States of the Union, do, it is true, have statutes which denounce as a felony the failure to provide for children under the age of sixteen (16) years, under certain circumstances, but that statute and those circumstances are not involved here. * * * Greatly to my regret I have reached the conclusion, after an examination of all the law on the subject that I have been able to find that the offense denounced by section 4026, Revised Statutes of Missouri, 1929, does not involve moral turpitude. The courts have said that the term "moral turpitude" is vague, and the legal definitions of it which are found in the books do not afford any very satisfactory criteria for a definite conclusion. It is variously defined as anything done contrary to justice, honesty, principle, or good morals, an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society, in general, contrary to the accepted and customary rules of right and duty between man and man. It implies something immoral in itself, regardless of the fact whether it is punishable by law. It must not merely be mala prohibita, but the act itself must be inherently immoral. The doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Looking at the reason and origin of the statutory crime of wife abandonment, I think it is fairly clear that a breach of this statute involves no moral turpitude, even though it is under the law of Missouri a misdemeanor punishable by a maximum of twelve months' imprisonment in a common jail.
Apparently, the court was not considering whether the crime of willful neglect and nonsupport of minor children, coupled with ability to support them, resulting in the children being adjudged neglected children, involved moral turpitude, but was considering wife abandonment and his statements appear inconsistent and lacking in that clearness of reasoning and analysis which would make this decision a sound precedent to follow. This is further shown by what the court stated in a colloquy with counsel for the Government, who indicated that the case might be appealed and that he wished to communicate with the Immigration and Naturalization Service. The court said: "Oh, yes, I know that you are not responsible for the vagaries of those gentlemen, if so it be, and the court of appeals has decided that the manufacture of liquor, contrary to the provisions of the Volstead law, does not constitute moral turpitude, then I think I am on pretty safe ground. The Court of Appeals for the Eighth Circuit held in the Bartos case that it did not ( Bartos v. United States, 19 F. (2d) 722)."
Strange as it may seem, the court, after specifically pointing out that the Missouri statute denouncing failure to provide for minor children was not involved in the N---- case, evidently based his decision that the crime of wife abandonment did not involve moral turpitude on the fact that it had been held in his circuit that violation of the Prohibition Act did not involve moral turpitude. The court could just as logically have held that the offense did involve moral turpitude, if he was to be controlled by what the higher courts decided in regard to the Prohibition Act, for the Ninth Circuit ( Rousseau v. Weedin, 284 F. 565) such violation had been held to involve moral turpitude.
The N---- case, from whichever viewpoint it is considered, is certainly not a very strong or persuasive precedent. In fact, it fails to even touch upon the question at issue, to wit: Whether an alien father who is able to care for and support his minor children and willfully fails, neglects, and refuses to do so for a period of over 2 years, commits a crime involving moral turpitude.
This Board has frequently held that the crime of nonsupport and the abandonment of the family and minor children constitutes a crime involving moral turpitude. On January 26, 1942, we held that a violation of the Colorado Statutes, Annotated, 1935, was a crime involving moral turpitude. The statute reads as follows:
Sec. 1. Any man who shall willfully neglect, fail, or refuse to provide reasonable support and maintenance for his wife or his legitimate or illegitimate child or children under 16 years of age * * * shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not to exceed one year.
File 55866/197, decided November 19, 1934 (failure to provide for minor children under California statute); 55794/339, September 7, 1934 (abandonment of wife and children under Wisconsin statute); 55671/605, August 8, 1929 ("being then and there able * * * did neglect and refuse to provide support for his children," under Ohio statute); all held the crimes involved moral turpitude.
It is evident that the Board has been guided in some of its later decisions by the N---- case, and the majority cite several cases in which the Board has held that the crime of nonsupport does not involve moral turpitude, but in not one of them was there ability on the part of the father and a willful refusal to support as in the pending case, resulting in the children becoming neglected children in the juvenile court.
The Ohio statute which we are considering is a humane enactment and, as appears from its title and provisions, it provides for the care and support by the father of the helpless child, whether it be legitimate or illegitimate, and of the more or less helpless woman who is to give birth to a child.
Indeed, as we have already noted, the Ohio statute further provides that lack of property or earnings, or the inability to secure employment or physical incapacity to perform labor, is a complete defense to a prosecution for violation thereof (Ohio General Code, sec. 13008-1).
It is, therefore, not for us to endeavor to conjure in our imaginations possible cases in which some father could be prosecuted for a violation of the statute under a set of facts where the father lacked ability to support the child, or the child was not in actual need of support, and, therefore, the crime might not involve moral turpitude.
Such an hypothesis which is relied upon throughout the opinion of the majority proceeds from the untenable assumption that our law enforcement officials, courts, and juries are so lacking in the qualities of common sense, intelligence, fairness, and justice that fathers who act in good faith, who are blameless and whose children are allowed to suffer no actual want, are nevertheless indicted, placed on trial, prosecuted, tried, convicted, and imprisoned. Such an hypothesis and assumption are contrary to the facts and entirely without justification.
Furthermore, when indulging in this unwarranted type of conjecture and speculation, there is overlooked completely the injury to the character of the child, its disillusionment and disappointment, which results from the indifference and lack of interest, care and affection shown by the father, which is as harmful and injurious as a failure or refusal to provide material comforts and may be even more so.
In the instant case we can readily discern from the charge that the alien was able to support his two small children and neglected and refused to do so for a period of more than 2 years, and caused them to be adjudged as neglected children by the juvenile court. What more is necessary? That is the crime of which he was convicted and sentenced. We apply the test laid down in the cases of Zaffarano v. Corsi ( 63 F. (2d) 757), and U.S. ex rel Mylius v. Uhl (210 Fed. 860), and determine the character of the crime, of which the alien has been convicted, from the description and recitals set forth in the judgment of conviction, i.e., the charge (indictment), plea, verdict, and sentence.
I am going to cite what some of the courts have said in naturalization cases in regard to the nature and seriousness of the crime which we are considering. I realize, of course, that a slightly different test applies to deportation cases. Nevertheless, in view of the fact that the immigrant is considered a potential future citizen and we grant aliens admission to our country in the hope that they are fit material for citizenship, it is of importance to bear in mind the opinion which the courts have expressed of the nature, seriousness, and gravity of the crime of neglecting and refusing to support minor children as a bar to citizenship.
In re Nosen (49 F. (2d) 817), the alien claimed that his family in Norway refused to join him here, so he did not send them anything for their support, there being two minor children, 7 and 14 years old. In denying his application for citizenship on the ground that his failure and refusal to support his children constituted evidence that he was not "a man of good moral character," the court said:
Whether due to desire or by desire, he is the father of two children, yet helpless infants. By every law, natural, human, moral, and divine, he is obliged to protect, support, and care for them. Nothing excuses failure to discharge this obligation, and no man who evades it is of good moral character. Although the husband may choose the place of family residence and may legally withhold support from the wife who fails to abide by it, her delinquency affords no justification for his failure to support the children she retains elsewhere. Her sin must not by him be visited on them.In re Sigelman (268 Fed. 217), the applicant for naturalization left his wife and family in the Province of Minsk in Russia. He desired citizenship mainly for the purpose, as the case disclosed, of procuring a passport and returning to Russia under the protection of the flag of the United States, which would follow his citizenship, in order that he might get his family and bring them to this country. Such a situation possessed appealing features from a sentimental viewpoint. However, the court said:
But the wise general rule ought to be that no man who leaves his wife or infant children, or a wife and infant children in the country from which he comes, and to which he owes allegiance, should be naturalized until he has brought his family to the United States, as among other considerations, an earnest of his good faith that his purpose is to remain in the United States as a citizen. Moreover, the opportunity for fraud, and for violation of the several state statutes, which denounce the abandonment of wife and infant children of tender age, is so great that any other rule would afford too wide an opportunity for a violation of these abandonment statutes by those whom the implied contract of their admission to citizenship has obligated to continue to be moral and law-abiding men. [Italics supplied.]In re Caroni (13 F. (2d) 954), the court said:
Native criminals are a sufficient problem, without complicating the solution by alien criminals fortified by citizenship. Undoubtedly, the interest of society requires the rehabilitation of the criminal as soon and as far as may be. But this does not import that society will ignore the crime, relieve the offender of all consequences, and upon him bestow undeserved privileges, rights, and honors, viz: the enviable grant of American citizenship. Otherwise, what the inspiration of righteous living? In general, it were better that the alien criminal were deported. [Italics supplied.]
It is quite clear from the foregoing cases, that the unnatural father who neglects and refuses to support his children is not considered much of a national asset, but rather a liability.
It would seem to be our duty to view this question realistically and not merely according to theoretical concepts and the strained meaning of words and phrases. What actually happens in a majority of cases to the children whose father, although able to provide for them, fails and refuses to do so? Are such children not generally compelled to live under crowded and unwholesome neighborhood conditions? Are they not usually inadequately housed, fed and clothed? Is not their environment apt to be conducive to delinquency? Indeed, in the instant case, the children were adjudged by the juvenile court to be neglected (semidelinquent) children.
Judge Charles W. Hoffman, the Judge of the Domestic Relations Court of the City of Cincinnati in the State of Ohio, has for many years been looked upon as one of the authorities on the work of juvenile courts in this country so far as pertains to the commission of crime or juvenile delinquency. In his address on Children and Crime, delivered before the Attorney General's Conference on Crime, he said:
Statistics reveal that the great majority of delinquent children come from socio-economically poor districts with the unhappiness that develops from crowding too many people into one or two rooms and having only the streets as loafing grounds for youngsters who find homes unpleasant, the feeling of discouragement and bitterness on the part of parents and of lawlessness in the children develops readily.
In any program having in view a decrease in delinquency and crime, it is indispensable and imperative that poor areas be made less poor, that better housing facilities and more adequate play space be provided. This plus unemployment insurance will do much toward initiating a change of attitude in many families. May I suggest that this would probably be more effective in reducing the crime rate than all the tightening up of the criminal procedure can possibly achieve.
Katherine F. Lenroot, Chief of the Children's Bureau, is another national authority in regard to all problems pertaining to child welfare and delinquency. Miss Lenroot has this to say:
In terms of family life, which has been shown to have so direct a relationship to delinquency and crime, this approach necessitates the development of greater economic opportunity, and social provision against the hazards of unemployment, incapacity, and widowhood, so that children need not be subjected to conditions of such strain and tension in poverty-stricken homes as to make normal childhood impossible.
In a recent brochure entitled "Understanding Juvenile Delinquency," issued by the United States Department of Labor, Children's Bureau, 1943 (p. 24), the following statement is made:
The economic situation of the country as a whole has markedly increased since the war began. But there are still too many families trying to live on incomes too meager for more than the barest subsistence.
What kind of security can these low-income families give their children? What kind of home life? Family discord is more likely to arise when parents are harassed by anxieties over making a living. In discouragement or despair. fathers desert their families or begin to drink; mothers may give up the struggle to keep an orderly home. Many situations that are labeled "delinquency" are basically family problems that have found expression in the behavior of the child.
As long ago as 1919, Julia C. Lathrop, first chief of the Children's Bureau, said:
"Children are not safe and happy if their parents are miserable, and parents must be miserable if they cannot protect a home against poverty. Let us not deceive ourselves, the power to maintain a decent family living standard is the primary essential of child welfare. This means a living wage and wholesome working life for the man, a good and skillful mother at home to keep the house and comfort for all within it. Society can afford no less and can afford no exceptions."
It was true then, it is equally true now.
Mr. J. Edgar Hoover, Director of the Federal Bureau of Investigation, has oft declared that the appalling increase in juvenile crime which had its inception long prior to the present era of "war-boom prosperity," was due to the neglect of the parent who fails to properly maintain his offspring and leaves them to shift and manage for themselves as best they can. Mr. Hoover has pointed out what has long been apparent to every observing and intelligent citizen, that many of our criminals come from homes where the parents are separated or divorced and in all too many cases no adequate provision is made for the care and support of the children who are thereby led into lives of crime.
Father Flanagan, founder of Boys Town, near Omaha, Nebr., upon his recent visit to the Capital reiterated in a public address a statement which he has frequently made and which has been so often quoted that it has become almost a part of our speech: "There are no bad children, but bad parents who do not give children a proper opportunity."
What kind of an opportunity did the alien in this case give his children? Did he not subject them to the very menacing and damaging mode of life to which Judge Hoffman, Miss Lenroot, Miss Lathrop, and Mr. Hoover referred?
According to the charge laid in the indictment in this case, the alien for a period of more than 2 years, "being able to * * * did neglect and refuse to care for, support and maintain the said minors * * * of the age of 12 and 10 years," and caused them to become neglected children.
The definition of the term "moral turpitude" which is most frequently quoted is the one which the editors of the American and English Encyclopedia of Law wrote many years ago and which has never been essentially modified.
It is defined as anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man (20 Am. and Eng. Ency. of Law, 872; 41 Corpus Juris, 212).
A thief is a debased man. He has no moral character. The fact that a statute may classify his act as grand and petit larceny and not punish the latter with imprisonment and declare it to be only a misdemeanor does not destroy the fact that theft, whether it be grand or petit larceny, involves moral turpitude. It is malum in se, and so the consensus of opinion — statute or no statute — deduces from the commission of the crimes mala in se the conclusion that the perpetrator is depraved in mind and is without moral character ( Bartos v. United States, 19 F. (2d) 722, 724) quoted with approval in Tillinghast v. Edmead ( 31 F. (2d) 81, 83, 84).
The reasoning in the cited cases stems from the thought that a violation of those principles of right and wrong which are fundamental in human relationships and which were recognized before there was a statute denouncing their violation shows baseness, depravity, lack of moral character. In the same manner, a fortiori, the care and support of children is an elemental duty, one which is fundamental, and is owed to the child and to "our fellow man and to society" by every one having any responsibility for their being brought into being. What kind of a country would we have and what would be its future if citizen fathers neglected their children in the manner which the alien did in the instant case?
Analogous to self-defense and self-preservation, it is one of the most elemental characteristics of the human species, and is perhaps the first and greatest natural duty, to care for the helpless for whose very being and consequent needs one is responsible.
What could be more fundamentally contrary to justice, honesty, principle, and good morals than, after having brought a helpless infant into being, to abandon him or her to suffering for want of the ordinary necessities of life — food, clothing and shelter? What offense could be more an act of baseness, of depravity, in the private and social duties which a man owes to his fellow man or to society? What could be more contrary to the accepted and customary rule of right and duty between man and man (or man and child)?
I agree with the statement of the majority that the enforcement of our criminal statutes dealing with the nonsupport of minor children rests with our courts. I have no fault to find with the manner in which the courts are enforcing the law. It is the majority who take a critical attitude toward the courts. It is my view that when the courts have acted and the guilty father, who has neglected his children, has been convicted and sentenced, as he has in the case we are considering, and he is an alien, that the crime being morally turpitudinous, should be treated as such in the enforcement of our deportation statutes.
I believe that the following analysis of the problem of juvenile and parental delinquency applies to the children of alien fathers as well as citizen fathers:
Our Nation may face the prospect of a rich harvest of juvenile misconduct if we fail to take care of our children. And the delinquent of today may be the criminal of tomorrow. The material waste of crime and delinquency is appalling; it is estimated that it amounts to billions of dollars every year. And the material waste is, of course, nothing as compared with the moral and social waste. (Understanding Juvenile Delinquency, U.S. Department of Labor, Children's Bureau, 1943, p. 6.)
It is well to bear in mind the factual situation in this case. The wife divorced the alien father in 1936; he had been arrested eight or nine times, mostly on the ground of failing to support his family; he was sentenced several times to the workhouse at Warrensville, Ohio; in the case which we are considering as a basis for deportation the two minor children, aged 10 and 12 years, were charged and adjudged in the juvenile court to be neglected children under the Juvenile Court Code of Ohio (sec. 1639-3); the alien father was charged with the willful failure, neglect, and refusal to support them or to contribute to their support, for the period from January 1936 to February 28, 1938, a period of over 2 years, although he was able to support them; on March 7, 1938, the alien father pled guilty to the crime as charged and was sentenced to the workhouse at hard labor for the term of one year, and in the judgment of conviction it was "ordered that the said minors be committed to their mother." It does not appear from the record that provision had been made in the divorce action in regard to the support and maintenance of the children. However, there is a strong implication that they had been awarded into the care and custody of the father, in view of the proviso ordering them to be committed to the mother, which would not have been done if they had already been in her care and custody. She had remarried.
To hold that this crime does not involve moral turpitude, leads to some rather anomalous and incongruous results.
If the alien father were convicted of having testified falsely in regard to a single material fact in the trial of the very case in which he was convicted of willful nonsupport of his minor children and they were adjudged to be neglected (semidelinquent) children, it would be held that he had been convicted of a crime involving moral turpitude.
Or if the alien father had stolen a load of bread for food for said children or a pair of shoes to keep one of the children from going barefooted and been convicted of petit larceny, that would also be held to be a crime involving moral turpitude.
It is held in this case that the other crime of which the alien has been convicted, viz: housebreaking, is a crime which involves moral turpitude. It is a crime which a father might commit for the purpose of obtaining a bottle of milk for his children.
All three of the foregoing crimes are held to involve moral turpitude, and yet each one of them, indeed, all three of them combined would cause far less serious consequences and harm to the individual victims and to the public at large than the crime committed by the alien when "from January 1, 1936, until February 28, 1938, he, being able to * * * did neglect and refuse to care for, support, and maintain the said minors, * * * of the age of 12 and 10 years," and causing them to become "neglected children."
The reasoning of the Attorney General in the recent case P---- E---- G---- H----, file 56133/119, decided August 16, 1943, properly applies to this and similar cases.
It is, therefore, my opinion that the warrant charge, that the alien has been sentenced to imprisonment more than once for a term of one year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: Nonsupport of minor children, and housebreaking, has been sustained, and that the alien is subject to deportation.
As a dissent has been recorded, the Board refers the case to the Attorney General for review of its decision in accordance with section 90.12, title 8, Code of Federal Regulations.