A-7821035
Decided by Central Office October 24, 1950
Crime involving moral turpitude — Attempted suicide in violation of section 270 of the Canadian Criminal Code.
The offense of attempted suicide in violation of section 270 of the Canadian Criminal Code (conviction on December 18, 1946) does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude, to wit: Attempt to commit suicide.
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Attempt to commit suicide.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a 23-year-old single female, a native and citizen of Canada, who, upon application at the port of Niagara Falls, N.Y., for temporary admission for a visit of several hours, was excluded by a board of special inquiry on the grounds above stated. She has appealed from the excluding decision.
At the hearing before the board of special inquiry, the appellant testified that she did not intend to reside permanently in the United States; that she had been entering the United States on the average of twice a week, usually to attend a movie; that, although never married, for the past 4 years she has been residing in Niagara Falls, Ontario, Canada, as husband and wife with a married man who is legally separated from his spouse; and that she had only been arrested on one occasion; namely, December 1946 in Niagara Falls, Ontario, Canada.
In connection with the aforementioned arrest, the appellant presented a certification from the county crown attorney and clerk of the peace, Welland, Ontario, Canada, stating that, according to the official record of conviction, the appellant appeared in the Magistrate's Court at Niagara Falls, Ontario, on December 18, 1946, "charged with attempt to commit suicide, contrary to section 270 of the Criminal Code of Canada. Pleaded guilty as charged. Sentence suspended and placed in custody of her mother, E---- D----, to return to Timmins, and make it her home."
Section 270 of the Criminal Code of Canada, under which statute the appellant was convicted, provides:
Everyone who attempts to commit suicide is guilty of an indictable offense and liable to 2 years' imprisonment.
Whether the appellant is subject to exclusion on the grounds urged by the board of special inquiry is dependent upon whether the offense of which she was convicted; namely, attempt to commit suicide, is a felony or other crime or misdemeanor involving moral turpitude. The words "involving moral turpitude" refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality. Whether a particular criminal offense involves moral turpitude is determined by standards prevailing in the United States.
39 Op. Atty. Gen. 95, 96.
The following excerpts relating to suicide and attempt to commit suicide appear in Corpus Juris:
In its technical and legal sense it means self-destruction by a sane person or the voluntary and intentional destruction of his own life by a person of sound mind, the further qualification being added by some definitions that he must have attained years of discretion. * * *
By the early English common law suicide was a felony punishable by forfeiture of the goods and chattels of the felo-de-se, as the suicide was called, and the ignominious burial of his body in the highway; but since the forfeiture of the property of a felon is now abrogated by statute, and burial in the highway is either forbidden by statute or has fallen into disuse owing to adverse public sentiment, and since the successful suicide himself is no longer amenable to human punishment, the question of criminality of his act is of importance only incidentally as determining the criminality of aiders and abettors or of persons joining in suicide pacts, or of attempts to commit suicide, or in determining whether or not his act is such that it exempts an insurer from liability because his death is in or in consequence of a violation of law. According to some authorities, since the act is one for which no punishment is provided, it is not regarded as criminal, with the result that the incidents of a criminal act do not follow therefrom. Other authorities, however, take a different view.
If the act of suicide fails to accomplish its purpose, it constitutes an attempt to commit suicide, which is unlawful and criminal, and an indictable offense both as common law and under some statutes. Under other statutes, however, an attempt to commit suicide is held not an indictable offense for the reason that no penalty of any kind attaches to the suicide if actually committed. It is necessary to find that there was an intent to take away life in order to constitute an attempt. A statute providing for the crimes of an attempt, or assault with intent to commit murder, is not applicable to attempt to commit suicide.
The act of suicide ranges in the various jurisdictions of the United States from a felony to no offense and the courts are divided on the question of whether the attempt to commit suicide is an indictable offense today. Suicide is a crime in South Carolina ( State v. Levelle, 34 S.C. 120); Kentucky ( Com. v. Hicks, 118 Ky. 637); New Jersey ( State v. Carney, 69 N.J.L. 478); Alabama ( Penn Mut. Life Ins. Co. v. Cobbs, 23 Ala. App. 205). Suicide has been held not to be a crime in New York ( Hundert v. Com. Trav. Mut. Acc. Ass'n, 279 N.Y.S. 555); Maine ( May v. Pennell, 101 Me. 516); Massachusetts ( Com. v. Dennis, 105 Mass. 162; also see Com. v. Mink, 123 Mass. 422); Ohio ( Blackburn v. State, 23 Ohio St. 146); Illinois ( Royal Circle v. Achterrath, 204 Ill. 549); Iowa ( State v. Campbell, 251 N.W. 717); Texas ( Grace v. State, 44 Tex. Cr. 193; Sanders v. State, 54 Tex. Cr. 101). Attempt to commit suicide has been held not to be a crime in Maine ( May v. Pennell, supra); Massachusetts ( Com. v. Dennis, supra); Pennsylvania ( Com. v. Wright, 26 C.C. (Pa.) 666); New York (25 Journal of Criminal Law and Criminology 125); Hawaii ( King v. Ashee, 2 Am. L.R. 794); Texas ( Grace v. State, supra; Sanders v. State, supra); Illinois ( Royal Circle v. Achterrath, supra); Iowa ( State v. Campbell, supra).
Cases cited in "The Criminal Aspect of Suicide," Richard Wolfrom, 39 Dickinson Law Review, 42-52; "Legal Aspects of Suicide," Carl V. Venters, 38 Law Notes, 44-47.
See footnote 4, supra.
In his article, Legal Aspects of Suicide (p. 44), the author states:
See footnote 4, supra.
In legal acceptation as well as in a popular sense the term "suicide" is employed to characterize the act of self-destruction. "Self-murder" frequently is used as an equivalent expression. The act has been viewed in both a moral and legal sense from widely varying standpoints by the jurists and philosophers of different ages and stages of civilization. Homicide generally is punished because it strikes at the security of society, and because it deprives the state of a life which is considered a thing of value. The former of these considerations plainly is not present in the case of suicide. Not only does it not produce the terror that attaches to assassination, but at times it concededly is accomplished with praiseworthy motives. Indeed, suicide always is inspired by motives of a very different character from those which are present in case of felonious homicide generally. At times the act of self-destruction is the product of a sense of religious duty; at other times a sense of honor inspires the actor; and, again, it may and not infrequently does result from motives of humanity.
Although the writer of The Criminal Aspect of Suicide (p. 51), expresses his personal opinion that attempts at suicide should be criminally punished, he concedes that:
See footnote 4, supra.
Public opinion generally has seemed to reach the stage that it no longer recognizes suicide as a crime and, therefore, there are scarcely any criminal proceedings against those who attempt suicide. Even in England the practice persists of the coroner's jury pronouncing that the act was the result of insanity, thus allowing the perpetrator a full Christian burial. The family is spared the greater of two evils, for the perpetrator is said to die insane instead of felo-de-se. Consequently, when the completed act is not popularly countenanced as an act of criminal nature, the argument succeeds that the unsuccessful attempt should not be criminally punished. Even in those states where it is reasonably held that the attempt is criminal, prosecutions against those persons who do attempt suicide are not promoted, for there is only one reported case in each of these jurisdictions. In New York, where the attempt was a felony by statute for thirty-eight years, it was said that policemen frequently were seen waiting at hospitals to arrest persons who had attempted suicide. On the other hand, in North and South Dakota where the attempt has been made a felony by statutory enactment, cases coming within the statute are not prosecuted.
In an article which appeared in the Harvard Law Review, the author states:
"Suicide and the Law," Wilbur Larremore, 17 Harvard Law Review, 338-340.
The question remains whether legal provisions directly affecting an unsuccessful suicide himself are justifiable and expedient. Several references have already been made to the portions of Mr. Lecky's work on European Morals treating of suicide, which are valuable alike for their collation of the literature of the subject and the author's own enlightened and judicial views. The present writer, nevertheless, feels constrained to except to Mr. Lecky's sweeping dismissal of legal interference. He says: "Suicide is indeed one of those acts which may be condemned by moralists as a sin, but which, in modern times, at least, cannot be regarded as within the legitimate sphere of law; for a society which accords to its members perfect liberty of emigration cannot reasonably pronounce the simple renunciation of life to be an offense against itself." This is substantial Catonism, and the doctrine is not only in accord with the axioms of modern democracy, but is supported by the spirit of positive provisions of American Constitutional law. * * *
The State of New York has a statute which makes an attempt at suicide a crime punishable by imprisonment not exceeding 2 years, or by a fine not exceeding one thousand dollars, or both. The specific policy of this law is wrong. Public opinion is against it and it has proved unenforceable. During the year 1902, 21 cases, and during the first half of 1903, 9 cases of attempted suicide were held for the grand jury by magistrates in the Boroughs of Manhattan and the Bronx of the city of New York. In every case the grand jury refused to find an indictment and the proceeding was dismissed. Such action was entirely satisfactory. The contention of Cato and Mr. Lecky is certainly valid to the extent that one who attempts suicide should not be treated as a criminal. * * *
Secs. 174 and 175 of the New York Penal Code were repealed and attempt to commit suicide has not been a crime in New York since 1919 (now Penal Law, sec. 2304).
In considering the standards prevailing in the United States in order to determine whether attempted suicide involves moral turpitude, cognizance must be taken of the following factors:
(1) Public opinion in the United States no longer regards suicide as a crime.
(2) Courts in the United States have not been in agreement as to whether attempt to commit suicide is an indictable offense.
(3) In several states, attempted suicide is not a crime.
(4) In the states in which such attempt is a crime, violations are not being prosecuted.
Logically and generally, acts which are "inherently base, vile, or depraved, contrary to accepted rules and morality," such as murder, larceny, abortion, rape, are crimes in every jurisdiction of the United States and the perpetrators of such offenses are prosecuted therefor whenever apprehended. It is extremely difficult to conceive, therefore, that an act, notwithstanding that it may be against public policy and religious tenents, which is not recognized by public opinion generally in the United States as being criminal, which is not an indictable offense in many jurisdictions in this country, and which is rarely made the subject of prosecution even in the States where it is a crime, is of such nature that it is "inherently base, vile, or depraved, contrary to accepted rules of morality." Accordingly, applying the Attorney General's test, attempt to commit suicide, the offense of which the appellant herein was convicted in Canada, is not regarded, under standards prevailing in the United States, as a felony or other crime or misdemeanor involving moral turpitude. The appellant, therefore, is not subject to exclusion on the grounds assigned by the board of special inquiry.
See footnote 2 ( supra).
Order: It is ordered that the appeal be sustained and the alien be admitted as a temporary visitor.