A-6694087
Decided by Central Office October 6, 1948 Decided by Board March 1, 1949
Crime involving moral turpitude — Forgery; Uttering a forged instrument; "Concealment of crime" (Mexico) — "Fear" as a defense or excuse — Degrees of principals, accessories, and accomplices in State of Guanajuato, Mexico.
1. The offense of forgery in violation of article 203 of the penal code of the State of Guanajuato, Mexico, involves moral turpitude.
2. The offense of uttering a forged instrument in violation of article 205 of the penal code of the State of Guanajuato, Mexico, involves moral turpitude.
3. The offense of merely failing to prevent the commission of a crime about to be committed, as that offense is described in article 357 of the penal code of the State of Guanajuato, Mexico, is not a crime involving moral turpitude.
4. In view of article 9 of chapter III of the penal code of the State of Guanajuato, Mexico, there are no degrees of principals, accessories, and accomplices in the State of Guanajuato, Mexico.
5. The "fear" which the law recognizes as an excuse for the perpetration of an offense must proceed from an immediate and actual danger, threatening the very life of the perpetrator, and the fear of future violence is not enough.
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry, to wit: Uttering a forged instrument, and concealment of crimes, to wit: Murder, robbery, and forgery.
Lodged: Act of 1917 — Admits crime prior to entry, to wit: Forgery.
BEFORE THE CENTRAL OFFICE
(October 6, 1948)
Discussion: This case relates to a native and citizen of Mexico, male, born August 9, 1922, who last entered the United States at El Paso, Tex. on May 30, 1947, at which time he presented a nonquota visa and was admitted for permanent residence.
The respondent first entered the United States at El Paso, Tex., on February 23, 1944, at which time he was admitted as an agricultural laborer. His contract was extended several times but he did not finish his contract because he asked permission to return to Mexico on account of his mother's illness. This was about March 1947. He had returned to Mexico about December 20, 1946, on a visit, by permission of the War Food Administration, and remained in Mexico about 2 months.
At the time of his departure to Mexico in December 1946, the respondent was accompanied by many others from the camp including F---- V---- and R---- H----. The respondent had known F---- V---- (real name A---- N---- R----, A-6873949) about 2 years and knew R---- H---- by sight. The party went together to Guadalajara, Jalisco, Mexico where they separated. The respondent proceeded to Pueblo Nuevo, Guanajuato. He did not know where his two companions named above went but, a few days later he met them both in Irapuato, Guanajuato, Mexico. The respondent testified that while in the railroad station at Guadalajara, Jalisco, Mexico, about December 24 or 25, 1946, F---- V---- told him that he knew that H---- had money and some checks and that he (V----) was going to take them away from him by one way or another. He also testified that the day after the conversation in the railroad station, he saw F---- V---- and R---- H---- in Irapuato in the city park. The respondent was with his mother. V---- and H---- had both been drinking. The respondent was told by V---- that he and H---- had been to a dance the night before that he, V----, could not do anything that night about the money. V---- requested the respondent to stay with him that day and go to the dance that night with him but the respondent asked his mother to tell F---- V---- that she would not permit him to stay. He testified that he asked his mother to tell F---- that because he, the respondent, was afraid of him because he was drunk. The respondent returned to Pueblo Nuevo with his mother.
On about the third day respondent returned to Irapuato to cash a check. When he landed from the bus he met F---- V---- in the park. Respondent was on his way to his cousin's house to get her to accompany him and give her signature so that he could cash his check and F---- V---- went with him. Respondent's cousin thereupon accompanied respondent and F---- V---- to a commercial house to identify him. At the commercial house the respondent signed his check and his cousin signed her name as a witness to his signature and the commercial house said another signature was necessary and F---- V---- offered his signature to the respondent's check. Thereafter F---- presented the checks he had, and asked the respondent and his cousin to place their signatures on his checks. Some of these checks were in the name of R---- H----. F---- V---- had previously told the respondent that he had killed H---- and had robbed him of his checks. Respondent's cousin hesitated to sign his checks until V---- told the respondent's cousin that he had used the name R---- H---- in the United States and that that was the reason he had the checks under that name. After the checks were cashed they left the commercial house and F---- and the respondent went to the park. At that time the respondent met his older brother who was in Irapuato and the latter told him that it was about time for the bus to leave for their home. Before separating from the respondent and his brother, V---- put a package in the respondent's pocket. Later when respondent opened the package he found it contained 1,000 pesos. Several days later F---- V---- came to the respondent's house in Pueblo Nuevo and told him he had given respondent the money so that respondent woudn't say anything about the murder.
As heretofore stated, the respondent testified that F---- V---- had told him as early as December 24 or 25, 1946, that he knew that R---- H---- had some money and checks and that he was going to obtain this money and checks by one way or another. The sum total of respondent's testimony, and excerpts from that of F---- V---- supports the conclusion that respondent did not know by what means F---- V---- intended to get H----'s money and checks, nor that it would be by means of murder and robbery. F---- V---- testified that after he had killed H---- at a place called Aldama Chico he went back to Irapuato, and the next day he saw the respondent and told him that he had killed H---- and that he had the four checks and that they had to get them cashed. Respondent first stated that he had learned from F---- V---- of the murder of H---- after they had cashed the checks in the commercial house. He finally testified as above indicated that V---- first told him in the commercial house before the checks were cashed that he had killed H----. This appears to establish definitely that respondent had guilty knowledge of the illegal obtainment of the checks before they were cashed.
Respondent was notified that this Service had secured excerpts from the penal code of the State of Guanajuato, Mexico, and had translations made thereof and it was desired to introduce them into evidence and make them a part of the record. The respondent's attorney offered no objections. The following statute relating to concealment of crime was read to the respondent.
Article 357 — A penalty of from 15 days to 2 years and fine from 20 to 500 pesos shall be imposed on anyone who:
Does not employ lawful means at his disposal to prevent the commission of crimes which he knows are to be committed, are being committed if punishable by law.
It will be noted that this statute is in the present or prospective in point of time. Therefore, inasmuch as the evidence does not establish that respondent knew that murder and robbery were to be committed or were being committed, the warrant charge so far as it relates to murder and robbery would not be sustained even if it were deemed that the crime of concealment involves moral turpitude.
As heretofore stated, the respondent was on ample notice that the checks which F---- V---- produced in the name of R---- H---- were the property of the latter. He had ample opportunity to employ lawful means to prevent the forgery and uttering of those checks which he knew were about to be committed. Instead, the respondent assisted and facilitated the commission of the forgery and uttering of the checks by endorsing them as an identifying endorser, knowing that F---- V---- was not the rightful payee named therein. Since the respondent did not employ lawful means at his disposal to prevent the commission of the crime of forgery, which he knew was about to be committed and was being committed, his concealment thereof, under the Mexican statute, constitutes a crime.
Whether a crime has been committed is determined by the law of the place of commission; whether a crime involves moral turpitude is determined by "the common view of our people concerning its moral character," i.e., by the standard prevailing in the United States (39 Op. Atty. Gen. 95 (1937); (37 Op. Atty. Gen. 293 (1933)).
It is believed that this crime is in part comparable to the common law crime of misprision of felony. This crime is defined in Clark's criminal law (third edition) page 440, as a "criminal neglect either to prevent a felony from being committed or to bring to justice the offender after its commission," citing 1 Bish. New Cr. Law, section 716, et seq. With reference to this crime, it is stated: "To constitute this offense there must be mere knowledge of the offense, and not an assent or encouragement; for, if the latter, the person becomes principal or accessory. The crime is a misdemeanor."
A conviction could be had for this crime for mere failure or neglect and without evil intent. Clearly the crime of misprision of felony under the common law does not involve moral turpitude.
We have no information concerning whether a conviction could be had under the Mexican statute relating to concealment of crime, of one who facilitated the commission of the substantive crime as a principal or accessory. As discussed elsewhere herein, the respondent is shown to have been a party to the commission of the substantive crime of forgery, which is the crime which he is charged in these proceedings with having concealed. Even if such a conviction could be had, a literal reading of the translation of the statute seems to clearly show that an evil and depraved intent is not essential to support a conviction, but that mere knowledge of the offense about to be committed or being committed and neglect to employ lawful means available to prevent its commission is sufficient to support a conviction. In view of the close resemblance of this crime to the common law crime of misprision of felony and since the statute does not require an evil or corrupt intent, it is concluded that the crime is not one involving moral turpitude. Consequently, the warrant charge relating thereto is not sustained.
The penal code of the State of Guanajuato, Mexico, chapter III, entitled "Persons responsible for crimes", article 9, was read to the respondent, and is as follows:
CHAPTER III — PERSONS RESPONSIBLE FOR CRIMES
Article 9 — Those who participate in the planning, preparation, or execution of a crime, or who lend their help or cooperation in any form, by previous or subsequent agreement, or induce someone to commit it, are responsible for said crime.
There was also read to the respondent the statute, title 9, relating to forgery of general documents:
TITLE NINE — FORGERY OF GENERAL DOCUMENTS
Article 202 — Crime of forgery of documents, either public or private, will be punishable by 6 months to 3 years' imprisonment and fine of fifty to one thousand pesos.
Article 203 — The crime of document forgery is committed by any of the following means:
"Placing a false signature or flourish, even though imaginary, or altering a true one."
Article 204 — In order to classify the crime of forgery as such, the following requirements must exist:
I. That the forger propose to derive some benefit for himself or another, or cause damage to society, to the State or to a third party;
II. That damage may result to society, the State or a private individual, to his property, to his person, to his honor or to his reputation; and
III. That the forger does so without obtaining the consent of the person who will be or may be injured or that of the person in whose name the document was issued.
Article 205 — Penalty set forth in Article 202 will also be incurred when: Knowingly, one makes use of a false document, be it public or private.
The respondent, upon having the foregoing statute explained to him, admitted that he committed forgery when he endorsed the checks witnessing V----'s signatures thereto as R---- H----. The crime of forgery is unquestionably one involving moral turpitude. In view of article 9 which specifically provides that one who participates in the execution of a crime is responsible for the crime, it must be concluded that the lodged charge relating to the respondent's admission of having committed forgery is sustained.
Under section 205 of title 9 provision appears to have been made for uttering. The respondent in his participation of the crimes of forgery and uttering as above related was guilty of the crime of uttering a forged instrument, which is also turpitudinous. He admitted having committed such crime. The warrant charge relating to this offense is sustained.
Findings of Fact: Upon the basis of all of the evidence presented at the hearing it is found:
1. That the respondent is an alien, a native and citizen of Mexico;
2. That the respondent last entered the United States at El Paso, Tex., on May 30, 1947, and was admitted for permanent residence;
3. That on or about December 24, 1946, in Guadalajara, Jalisco, Mexico, respondent's friend, F---- V----, told him that one, R---- H----, had some money and checks and that he, V----, was going to take them away from him by one way or another;
4. That in Irapuato, Guanajuato, Mexico, on or about December 29, 1946, in the presence of respondent, F---- V---- produced some checks in the name of R---- H----, informed respondent that he (V----) had killed H----, and requested respondent's help in cashing the checks;
5. That in Irapuato, Guanajuato, Mexico, on or about December 29, 1946, in the presence of respondent, F---- V---- endorsed the name of R---- H---- on those checks;
6. That in Irapuato, Guanajuata, Mexico, on or about December 29, 1946, respondent endorsed those checks with his own signature as a witness to the signature placed thereon by F---- V----;
7. That in respondent's presence, F---- V---- accepted the cash proceeds of such endorsed checks, of which respondent subsequently was given 1,000 pesos, which he retained;
8. That respondent knew that these checks were not the property of F---- V---- and had reason to believe that the checks had been obtained by F---- V---- through the murder and robbery of R---- H----;
9. That respondent did not know in advance, or at the time, that the crimes of murder and robbery were to be, or were being, committed;
10. That the respondent was on ample notice that the crimes of forgery and uttering were to be committed, but did not employ lawful means at his disposal to prevent the commission of such crimes.
11. That the respondent participated in the execution of the foregoing crimes by endorsing the checks as an identifying witness and receiving a portion of the proceeds:
12. That the respondent admits having committed the crimes of forgery and uttering a forged instrument in Mexico about December 29, 1946.Conclusions of Law:
1. That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he admits having committed a crime involving moral turpitude prior to entry into the United States, to wit: uttering a forged instrument, and forgery.
2. That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the grounds that he admits having committed crimes involving moral turpitude prior to entry into the United States, to wit: concealment of crimes — murder, robbery, and forgery.
3. That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico at Government expense.
Inasmuch as the warrant charge relating to the concealment of crimes of murder, robbery, and forgery is not sustained, no comment need to be made relative to the attorney's brief of exceptions relative to those offenses.
The attorney's contention is that the first time that respondent knew any crime was planned at all was at the actual execution of it, namely the cashing of the checks in the commercial house; that, therefore, it is apparent that there was no preparation or previous agreement on the part of the respondent in the execution of the crime. The record does not sustain this contention. It shows that the respondent and F---- V---- had been friends for about two years. They had met on different occasions after their return from the United States. The respondent was aware that V---- intended to get H----'s money and checks. Immediately after they were obtained, V---- came to respondent in the matter of how they would get the checks cashed. The fact that with ample time at his disposal to avoid V---- and refuse to assist in the cashing of the checks negatives the contention that there was no preparation or previous agreement. Likewise, while respondent may have had a fear of V---- there is nothing in the record to show that his fear was sufficient to cause respondent to avoid him. On the contrary, they were friends and met frequently and V---- confided in respondent. It is not believed that his alleged fear of V---- should excuse him of his legal responsibility for participating in the commission of the crimes. The other contentions of the attorney are without merit.
Other Factors: The respondent is married to a native-born citizen of the United States and they have two American-born children, and another child is expected. He testified that he has never been arrested other than his arrest in connection with his present difficulties. During the hearing the respondent was advised relative to applying for discretionary relief under the provisions of section 19 (c) of the Immigration Act of 1917, as amended, notwithstanding that he was shown to be deportable on a ground within the provisions of section 19 (d) of that act. The attorney on behalf of the alien stated that he did not care to make applications at this time for discretionary relief, but that if the alien is ordered deported he would file a motion to reopen for the purpose of making application for relief. The alien does not appear to be entitled to discretionary relief. Recommendation: It is recommended that the alien be deported to Mexico at Government expense on the charge under the Act of February 5, 1917, that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Uttering a forged instrument and forgery.
So ordered.
Discussion: The Assistant Commissioner ordered that respondent be deported from the United States on a charge that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: forgery and uttering a forged instrument. This record is before us on an appeal from that order.
A statement of the facts in this case necessarily must be lengthy and complex. They are adequately reviewed in the Assistant Commissioner's opinion. The statutes of Mexico which are applicable are also set out in that opinion.
We agree with the conclusion of the Assistant Commissioner that the crime of merely failing to prevent the commission of a crime about to be committed, as that offense is described in article 357 of the penal code of the State of Guanajuato, is not a crime involving moral turpitude. The charge in the warrant of "concealment of crimes" is, therefore, not sustained.
The forgery statute, article 203, provides:
The crime of forgery of documents is committed by any of the following means:
"Placing a false signature or flourish, even though imaginary, or altering a true one."
Chapter III of the same code provides:
Article 9. — Those who participate in the planning, preparation, or execution of a crime, or who lend their help or cooperation in any form, by previous or subsequent agreement, or induce someone to commit it, are responsible for said crime.
Respondent placed his own true signature on the checks, but he knew that V---- had forged H----'s name to the checks. Regardless of when he, respondent, actually found out that V---- had killed H---- to obtain the checks, respondent knew when the checks were offered that they were forged instruments, and he admits quite freely that he knew it. The checks could not have been cashed if respondent had refused to countersign them. By reason of article 9, set forth above, there are no degrees of principals, accessories, and accomplices in the State of Guanajuato. Every participant in a crime is guilty in the same degree as every other. We agree with the conclusion of the Commissioner that respondent, having cooperated in the cashing of the checks, is as guilty of the forgery under article 9 as is V---- himself.
To utter a counterfeit note is to assert, directly or indirectly, by words or actions that the note offered is good (2 Bouvier, p. 3383). As respondent is guilty under the facts of forgery, a fortiori, he is guilty of uttering a counterfeit note, for he certainly helped V---- to "make use of a false document."
We have held in many cases that forgery is a crime involving moral turpitude. To cite a few: Matter of J----, 1172533 (Jan. 5, 1948), Matter of S----, 5934794 (Aug. 19, 1946), and Matter of M----, 56156/448 (Dec. 3, 1943).
Counsel bases most of his defense upon the respondent's alleged fear of V----, claiming that having acted under fear he is relieved of the responsibility of the crime of forgery. The Assistant Commissioner's opinion says, "It is not believed that his alleged fear * * * should excuse him." We agree with this conclusion, and want to point out that the law is well settled as to the degree of fear necessary to relieve a malefactor of responsibility for his act.
Respondent never mentioned his fear of V---- until after he retained counsel. At his hearing on March 12, 1948, at which he testified freely before the Presiding Inspector, he was asked why he endorsed the checks for V----, knowing that V---- had signed the checks as H---- when he was not actually H----. Respondent replied, "Because V---- was a friend of mine and asked me to help him." In his testimony on April 16, 1948 (after he had obtained counsel), he testified "In the first place I signed because he was my friend and in the second place F---- V---- had given me his signature for my check. Also if I had refused him I was afraid that something might happen to me either by F---- V---- or his father or one of his brothers."
Respondent's testimony as to fear, when it does come out in the record, is mostly directed to his fear of what would happen to him if he were to tell the authorities of the crimes committed by V----. It is not, for the most part, fear of what would have happened to him if he had refused to witness the checks.
Counsel quotes from 15 Am. Jur., page 16, as follows:
It seems that the law will excuse a person, when acting under coercion or compulsion, for committing most, if not all crimes, except taking the life of an innocent person.
There is a qualification of this rule, however. This same treatise goes on to say:
The fear which the law recognizes as an excuse for the perpetration of an offense must proceed from an immediate and actual danger, threatening the very life of the perpetrator.
There are many cases, and the conclusion to be drawn from them is that the degree of fear must be very great indeed. In Browning v. State, 13 So. 2d 54 (Ct.App.Ala.), the degree of fear was held to be a question sufficient for the jury, because at the time he allegedly violated the law, defendant was driving through a hail of bullets into a police officers' ambush.
Shannon v. United States, 76 F. (2d) 490 (C.C.A. 10th, 1935), was one of the prosecutions growing out of the Urschel kidnapping case. The Shannons were Texas ranchers at whose house the victim was kept. The kidnappers went to Kansas City to collect the ransom. The first threats made against defendants by the gangsters were not until after the victim had been with defendants nearly 2 weeks. Then they were threatened if they betrayed the scheme. The court suggests that the defendants had adequate opportunity to notify the police and seek protection while the kidnappers were in Kansas City collecting the ransom. The court says (p. 493):
Instead, they cooperated in full measure. Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury (citing cases).
In the prosecution of Italian crew members for damaging an Italian taker which put in at Puerto Rico during the war, the court said, Giugni et al v. United States, 127 F. (2d) 786, 791 (C.C.A. 3d, 1942):
The question of coercion remains. The captain testified that he was the only armed man on board; that his officers and men were aware of that fact; that he carried his revolver in plain sight when giving orders for the demolition of the ship's machinery, and that he would have shot any man who refused to obey. This is not enough to prove coercion. There is no evidence of any reluctance on the part of anyone on board to carry out the orders given, and since the work of destruction was done over a period of 2 weeks during which time the ship was tied up alongside the shore, anyone who wished could have escaped ashore and sought sanctuary with the authorities, had he been so inclined, and thus escape coercion.
See also People v. Martin, 13 Cal. A. 96, 108, page 1034.
In the instant case there is no evidence that V---- threatened respondent by word or deed. As the cases say, fear of future violence is not enough. V---- gave respondent 1,000 pesos "to keep quiet" and respondent, apparently willingly, kept the money. Any fear respondent may have felt was not sufficient to excuse what appears to have been genial, friendly compliance with V----'s requests.
Counsel objects to the respondent being called upon to admit or deny the commission of a crime prior to entry, on the ground that it calls for a conclusion of law on the part of respondent. Counsel maintains that respondent can admit the facts brought out in the hearing, but that he cannot be expected to interpret his acts to mean that he was guilty of a specific crime. The law requires an "admission" for deportation. The procedure to be followed by an inspector taking an admission when there has been no conviction is well established. U.S. ex rel. Ciarello v. Reimer, (D.C.N.Y. 1940) 32 F. Supp. 797; Ex parte Tozier, 2 F. (2d) 268 (D.C. Me. 1924), affd. Howes v. Tozer, 3 F. (2d) 849 (C.C.A. 1, 1925).
The prescribed procedure was carefully followed by the inspector in the instant case. All the elements warranting the deportation of respondent for such an admission when there has been no conviction are present. Other cases in which this procedure has been followed are Wong Yow v. Weedin, 33 F. (2d) 377 (C.C.A. Wash. 1929); U.S. ex rel. Santarelli v. Hughes, 116 F. (2d) 612 (C.C.A.N.J. 1940); U.S. v. Williams, 200 F. 358, 118 C.C.A. 632; cert den. Rosen v. Williams, 232 U.S. 722, 34 S. Ct. 329 (1914).
Respondent was offered the opportunity to make application for relief from deportation, a procedural formality. In the April 9, 1948 hearing counsel stated an intention to file a motion to reopen for the purpose of making such application, in the event an order of deportation should be finally entered against respondent. A ground of deportation under section 19 (d) existing against respondent, he is clearly ineligible for a grant of suspension of deportation. There is nothing to be gained by filing such a motion.
The order of deportation will be affirmed.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be and the same is hereby dismissed.