56018/361
Decided by the Board March 21, 1941. Reversed by the Attorney General May 27, 1941.
Crime involving moral turpitude — Second degree assault with unknown weapon (Minnesota).
Second degree assault in violation of section 10098, Mason's Minnesota Statutes (1927) does not involve moral turpitude if the indictment on which the alien was convicted charged that the assault was committed with an unknown weapon.
CHARGE:
Warrant: Act of 1917 — Sentenced to imprisonment more than once for crimes involving moral turpitude — assault, second degree.
Mr. L.B. Williams, of St. Paul, Minn., for the respondent.
BEFORE THE BOARD
STATEMENT OF THE CASE: The respondent, a native and citizen of Germany, Russian race, 54 years of age, was ordered deported to Germany November 24, 1939, on the charge above stated. The respondent's daughter, Mrs. H---- B----, of 1219 South Sixth Street, Minneapolis, Minn., addressed a letter to Senator Shipstead in which she pleads that her father be not deported. In this letter she is joined by her three sisters and a brother. The letter was forwarded to the Immigration and Naturalization Service by Senator Shipstead with the request that careful consideration be given to the matter contained therein. When the proceedings were instituted, the respondent was an inmate of the Minnesota State Penitentiary, at Stillwater, Minn., but in the interim his prison term expired. He was released from custody on his own recognizance December 10, 1940, after the German consul general at Chicago stated that the alien was a man of no nationality and a passport for his return to Germany could not be issued.
DISCUSSION: The daughter, in effect, is petitioning for cancellation of proceedings. If the respondent is subject to deportation on the charge above mentioned, there is no discretionary power to cancel the proceedings. Because of inability to obtain a passport, it may be that in any event the deportation of the respondent may not be effected. To decide whether there is justification for action other than that which has been taken, necessitates a review of the record from the standpoint of whether the respondent is legally subject to deportation.
The order of deportation is based upon two convictions in the State of Minnesota for the crime of assault, second degree. An information was filed October 13, 1931, against the respondent for the first of these crimes. He entered a plea of guilty, and on November 4, 1931, was sentenced to imprisonment at the State Prison, at Stillwater, Minn., for a term not exceeding 2 years. On April 1, 1939, the respondent was charged in an information with the commission of another crime of assault in the second degree. For this offense he was convicted and on April 6, 1939, was sentenced to the State Prison at Stillwater for a term not exceeding 2 years.
The respondent had previously been convicted of the crime of abandonment of a minor child and on March 17, 1927, was sentenced to imprisonment for a maximum period of 3 years. This conviction was not used as a basis for the deportation order.
Having resided in the United States continuously since 1902, the respondent is subject to deportation for the commission of crime within the United States only if twice convicted and sentenced subsequent to May 1, 1917, for a period of 1 year or more for crimes involving moral turpitude. In the instant case, it is clear that respondent has been convicted and sentenced to imprisonment for a term in excess of 1 year on two separate and distinct occasions. The only issue that may be raised is whether the crime of assault in the second degree for which he was convicted involves moral turpitude. It might be observed in passing that it is not necessary to consider the conviction for abandonment of a minor child. On the basis that such crime does involve moral turpitude, the respondent would not be subject to deportation unless either one of his convictions of assault in the second degree likewise involved the element of moral turpitude. If it should be considered that the crimes of assault, second degree, do not involve moral turpitude, there would remain only one conviction, that for abandonment of a minor child, which would not make the respondent deportable. Consideration will, therefore, be limited to the question of whether assault in the second degree, for which the respondent was convicted, involves moral turpitude.
The nomenclature of a crime is of no practical value in dealing with offenses variously described by statutes in different jurisdictions. It is important, therefore, to know the statutory provisions relating to assault, second degree, in the State of Minnesota.
Section 10098 of Mason's Minnesota Statutes of 1927 describes assault in the second degree as follows:
Every person who, under circumstances not amounting to assault in the first degree —
1. With intent to injure, shall unlawfully administer or cause to be administered, or taken by another, poison or any other destructive or noxious thing, or any drug or medicine, the use of which is dangerous to life or health;
2. With intent thereby to enable or assist himself or any other person to commit any crime, shall administer or cause to be administered to, or taken by, another, chloroform, ether, laudanum, or any other intoxicating narcotic or anaesthetic;
3. Shall wilfully and wrongfully wound or inflict grievous bodily harm upon another, with or without a weapon;
4. Shall wilfully and wrongfully assault another with a weapon or other instrument or thing likely to produce grievous bodily harm; or
5. Shall assault another with intent to commit a felony or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself or any other person —
Shall be guilty of an assault in the second degree, and be punished by imprisonment in the State prison for not more than 5 years, or by a fine of not more than $1,000, or both.
Assault in the first degree, which is excluded from the definition of assault, second degree, is defined in section 10097 of the same statutes as follows:
Every person who, with intent to kill a human being or to commit a felony upon the person or property of the one assaulted or of another —
1. Shall assault another with a loaded firearm or any other deadly weapon, or by any force or means likely to produce death; or
2. Shall administer or cause to be administered to, or taken by, another, poison or any other destructive or noxious thing, so as to endanger the life of such other person, shall be guilty of assault in the first degree, and be punished by imprisonment in the State prison for not less than 5 nor more than 10 years.
At the outset, it should be noted that these provisions of the Minnesota statutes parallel in substance and are almost identical in language with the definitions of assault in the first and second degrees in New York State, as defined in sections 240 and 242 of the New York Penal Code.
When considering a conviction under the New York statute, the Circuit Court of Appeals for the Second Circuit in the United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757, held that the crime of assault in the second degree did not necessarily involve the element of moral turpitude. The court said: "Since the indictment was not before the immigration officials, they knew nothing as to the specific charge upon which the relator was convicted. It may have involved moral turpitude, or it may not." Hence, we start with the premise that, as decided by the Circuit Court of Appeals for the Second Circuit, the crime of assault, second degree, in New York, and therefore in Minnesota (since both statutes are practically identical), may involve moral turpitude or may not, dependent upon the specific charge for which the individual may have been convicted. In deciding, therefore, in the instant case the exact nature of the crimes for which the respondent was convicted, it is necessary to study the informations that were the basis for convictions.
For the first conviction in 1931, the information charges that the respondent:
did wilfully, unlawfully, wrongfully, knowingly, and feloniously wound with intent to inflict and did inflict grievous bodily harm upon another, to wit: one Eva Bailey, by then and there striking and beating her, the said Eva Bailey, with a weapon, a more particular description of said weapon being to me unknown;
The information in relation to the 1939 conviction charges that the respondent:
did wilfully, unlawfully, wrongfully, knowingly, and feloniously wound, with intent to inflict and did inflict grievous bodily harm upon another, to wit: one Joe Loss, by then and there striking and beating him, the said Joe Loss, with a weapon, to wit: a large beer glass, a more particular description of said weapon being to me unknown;
It will be observed that in each information it is charged that the respondent feloniously wounded the victim with intent to inflict grievous bodily harm, that he did inflict grievous bodily harm, and that the wounding was inflicted by means of a weapon. In one case the weapon is not described, and in the other case it is stated to be a large beer glass. Subdivision 4 of Assault, Second Degree, covers an assault with a weapon. That is what occurs in this case. Section 3 covers the willfully or wrongfully wounding of another or the inflicting of grievous bodily harm upon another, either with or without a weapon. These elements are set forth in the informations. The informations, therefore, could have been based on either or both of these subdivisions.
It is always a difficult question in borderline cases to determine whether an offense does or does not involve moral turpitude. This term has been defined as "an act of baseness, vileness, or depravity, in the private or social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man" ( Ng Sui Wing v. United States, 46 F. 2d 755).
Of possible aid in reaching a decision on the point involved, decisions in cases concerned with crimes of the same general character might be examined. It was held in United States ex rel. Griffo v. McCandless, 28 F. 2d 287, that the crime of aggravated assault and battery did not necessarily involve moral turpitude. In the course of its opinion the court said:
The construction we put upon the act is that the moral turpitude must be inherent in the charge, and thus be evidenced by the record.
The court further ruled:
that it is not conclusively implied in the charge of aggravated assault and battery.
In United States ex rel. Mazzillo v. Day, 15 F. 2d 391, the District Court for the Southern District of New York, Judge Knox, held that an alien convicted of assault, second degree, in New York was convicted of a crime involving moral turpitude. The court stated the facts in the case as follows:
It appears that on the evening of April 23, 1925, he (the subject of deportation proceedings) attended a party in company with a number of friends. While there he drank considerable liquor and became intoxicated. After leaving the place of entertainment, the relator with two or three of his friends hailed a taxicab. They then were overcome with the desire to operate it themselves and to dispense with the presence of the driver. In order to accomplish the latter purpose, the relator and perhaps one of his associates, assaulted the driver of the cab, who, for safety, was forced to abandon his car. In the melee the taxi driver received a cut in the neck.
As a reason for its conclusion that the crime involved moral turpitude, the court stated:
What he did evinces a disregard of the personal and property rights of others that brings his offense within the condemnation of the statute. Assaults committed with the intention of ousting persons from the possession of their property to the end that the usurper may use the same for his own enjoyment, and to the danger of the community, cross the boundary separating crimes of moral obliquy from those of lower grade.
In United States ex rel. Bincenzo Chillino v. Reimer, decided by the United States District Court, Southern District of New York, Judge Clancy, on June 19, 1940 (unreported), it was held that the crime of cutting with intent to wound under an Ohio statute, involved moral turpitude.
None of these decisions, however, is exactly in point. It is clear from them that not every assault and battery is to be considered a crime involving moral turpitude, and equally clear that certain other crimes of a serious nature falling under this general heading do contain the element of moral obliquity. In the instant case, the information charged felonious wounding with intent to inflict and the infliction of grievous bodily harm brought about by the use of a weapon. The fact that in one instance the weapon was a large beer glass is unimportant. Under certain circumstances, a large beer glass may be a far more dangerous weapon than would be an instrument properly recognized as a weapon, such as a small knife. To us a most important element in the case is the fact that the informations charged wounding with intent to inflict grievous bodily harm as well as the infliction of grievous bodily harm. The infliction of grievous bodily harm was not accidental or incidental to a brawl or altercation in which there may have been no intent to cause serious injury. The deliberate and intentional violation of the personal rights of an individual to the extent that grevious bodily harm is inflicted upon him, in our judgment, is an act of baseness in the social duties that a man owes to his fellow men, and therefore is an act that involves moral turpitude. We accordingly find no basis for modifying or changing the order of deportation issued in this case on November 24, 1939.
The case is one, however, in which views different from those reached by us could be taken. In spite of the three convictions, the case has appeal from the fact that the man has lived in the United States since 1902. The story related by the respondent's daughter, who is married, indicates domestic friction growing out of the respondent's second marriage. If deportable on the grounds stated in the warrant, these considerations are of no importance. The Board of Immigration Appeals does believe, however, that the question involved is one of difficulty, and therefore the matter should be referred to the Attorney General for review of its decision.
ORDER: It is ordered that no change be made in the outstanding order of deportation.
The Board of Immigration Appeals in a decision of March 21, 1941, has upheld an order for the arrest of the respondent, S---- B----, under the following provision of United States Code, title 8, section 155:
* * * Except as hereinafter provided, any alien who, after February 5, 1917, is sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * * shall * * * be taken into custody and deported. * * *
The Board recited, however, that "the case is one * * * in which views different from those reached by us could be taken, * * * and in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations refers the case to the Attorney General for review of its decision."
The respondent, described as "a native and citizen of Germany, Russian race," came to the United States in 1902 and has lived here since that time. The order for his arrest is based upon two charges of second-degree assault committed in the State of Minnesota in 1931 and 1939, respectively.
The statute under which the respondent was convicted in the first case (1931) reads in part as follows:
Every person who, under circumstances not amounting to assault in the first degree * * *
3. Shall wilfully and wrongfully wound or inflict grievous bodily harm upon another, with or without a weapon; * * *
Shall be guilty of assault in the second degree * * * (Mason's Minnesota Statutes (1927), sec. 10098).
The indictment charged that the respondent:
Did wilfully, unlawfully, wrongfully, knowingly and feloniously wound with intent to inflict and did inflict grievous bodily harm upon another, to wit: one Eva Bailey, by then and there striking and beating her, the said Eva Bailey, with a weapon, a more particular description of said weapon being to me unknown.
The Circuit Court of Appeals in United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757, 758, dealing with a statute quite similar to that of Minnesota, stated that second-degree assault with a dangerous weapon would involve moral turpitude, but, since the record did not indicate the specific offense charged or whether any weapon had been used, the court concluded that the offense could have been without moral turpitude and that upon the record before it the issue must be found in favor of the alien.
Here the question is much the same. The offense charged against the respondent in the 1931 indictment — second-degree assault with an unknown weapon, and therefore conceivably not a dangerous weapon — did not necessarily involve moral turpitude. See Ex parte George, 180 F. 785, 786, holding that a "felonious assault" that amounted to striking another with a large piece of firewood during a quarrel did not involve moral turpitude. Although I find no occasion to use it or to consider the propriety of doing so, I think I may properly mention the respondent's claim and testimony in the deportation proceeding that he struck his wife with a stick under circumstances of extreme provocation.
As in United States ex rel. Zaffarano v. Corsi, it is unnecessary to consider here the other assault charge because the order for the arrest of the respondent in order to be valid must be supported by two convictions of offenses involving moral turpitude.
The decision of the Board of Immigration Appeals is reversed, and it is ordered the warrant of arrest be canceled and the respondent discharged.