56076/139
Decided by the Board July 15, 1941.
Crime involving moral turpitude — Driving an automobile without the consent of the owner (California).
Driving an automobile without the consent of the owner in violation of section 503 of the California Vehicle Code is not a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa.
Lodged: Act of 1917 — Crime prior to entry — driving an automobile without the consent of the owner.
Mr. Daniel J. Schrull, Board attorney-examiner.
STATEMENT OF THE CASE: Warrant of arrest on the charge that at the time of entry respondent was not in possession of an unexpired immigration visa was issued May 7, 1941, served May 8, 1941, and hearing accorded the respondent thereunder the same day and continued on June 2, 1941, at Los Angeles, Calif.
Respondent waived the right to counsel at the hearing.
During the course of the hearing the additional charge that the respondent admitted the commission of a crime involving moral turpitude prior to entry, to wit: driving an automobile without the consent of the owner in violation of the California Vehicle Code, section 503, was lodged against the respondent and called to his attention.
The presiding inspector recommended that the respondent be deported on both charges.
A copy of the proposed findings, conclusions, and order was served on the respondent personally June 12, 1941. No exceptions thereto have been filed.
The matter is now before this Board for final review and decision.
The respondent is detained at Government expense.
DISCUSSION: The respondent testified that he is a native and citizen of Canada, 36 years of age, and that he last entered the United States during March or April of 1936 by automobile at San Ysidro, Calif., intending to remain here permanently although not then in possession of an unexpired immigration visa and that he was never admitted for permanent residence.
This evidence amply sustains the charge contained in the warrant of arrest.
The respondent admitted that he committed the crime of operating an automobile without the consent of the owner on January 9, 1936, in violation of section 503 of the Vehicle Code of California and was given 2 years' probation with a year's suspended sentence, the first 30 days to be spent in the county jail, Los Angeles. He stated that when arrested he was charged with grand theft of an automobile, which was reduced to a violation of section 503 of the Vehicle Code.
The crime just referred to in order to sustain the charge lodged against the respondent must be one involving moral turpitude. The statute under which the respondent was convicted reads as follows:
Theft and unlawful driving or taking of a vehicle. — Any person who drives or takes a vehicle not his own, without the consent of the owner thereof and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the State prison for not less than 1 year nor more than 5 years or in the county jail for not more than 1 year or by a fine of not more than $5,000 or by both such fine and imprisonment. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in any such driving or unauthorized taking or stealing, is guilty of a felony (sec. 503, California Vehicle Code of 1935).
In Solicitor's Opinion 4-878, an almost identically worded statute of the same State was interpreted with a view to determining whether it involves moral turpitude. That statute was the act of 1923 (ch. 266, title X, sec. 146), which provided:
Driving vehicle without owner's consent. — Any person who shall drive a vehicle not his own, without the consent of the owner thereof, and in the absence of the owner, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, shall be deemed guilty of a felony. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists him, or is a party or accessory to, or an accomplice in, any such stealing or unauthorized taking or driving, shall also be deemed guilty of a felony.
In that opinion the Solicitor stated:
By express language the offense is made a felony. But a careful reading of the statute will show the extremely wide scope of its application. It seems sufficiently broad to cover a case of theft, on the one hand, and a case of pure prankishness, on the other hand. In United States ex rel. Mylius v. Uhl. 210 F. 860, the circuit court of appeals for the second circuit, in the course of its opinion by Judge Coxe, said:
"If a crime does not in its essence involve moral turpitude, a person found guilty of a crime cannot be excluded because he is shown, aliunde the record, to be a depraved person."
The court in that case held that —
"The crime of publishing a criminal libel does not necessarily involve moral turpitude. It may do so, but moral turpitude is not of the essence of the crime."
Is moral turpitude the essence of the offense created by the statute in this case? If its application were limited to cases which would by their nature necessarily constitute theft or stealing as those offenses are known at common law, the answer would doubtless be in the affirmative ( Berdeaux v. Davis, 58 Ala. 611, where an attempt to commit larceny was held to involve moral turpitude). But it is plain that the offense against the statute here discussed is equally complete whether it be with or without intent to steal. The deprivation of possession from the owner for a temporary period without intent to steal, such as by prankishness, is as great an offense as any other under the statute.
As indicated by the court in Ex rel. Mylius v. Uhl, supra, an offense under the statute may involve moral turpitude, but moral turpitude is not the essence of the offense under the statute, for it is clear that in a given case the statute would be violated without the least element of moral depravity on the part of the one violating it. The definition of the term "moral turpitude" which has been adopted by the courts is that an act involves that element if its nature is such that it manifests upon the part of its perpetrator moral depravity or baseness or violence ( Ex rel. Mylius v. Uhl, supra; Rock v. Commissioners, S.C., D.C., April 21, 1924; Bouvier's Law Dictionary.)
Without manifestation of personal depravity or moral baseness on the part of the perpetrator of the forbidden act, moral turpitude is not of the essence of the crime. It is clear that a violation of this statute, without such manifestation, is as apt to occur as where intent to steal is present.
The court in Ex rel. Mylius v. Uhl, supra, further held:
"That the law must be uniformly administered. It would be manifestly unjust so to construe the statute as to exclude one person and admit another where both were convicted of criminal libel, because, in the opinion of the immigration officials, testimony in the former case showed a more aggravated offense than in the latter."
Applying the foregoing principle, it matters not how cruel or base the offense in a particular case may be, unless every violation of the statute creating the offense would involve moral turpitude no violation of it would involve that element.
It appears that the legislature, in order to reach certain acts and to subject the perpetrators of them to severe penalties, has arbitrarily created a class of offenses so broad as to remove a violation of the statute from the class of offenses that involves moral turpitude, although certain violations of the statute might otherwise involve that element. There is nothing in the present record to show in just what manner the statute was violated even were it possible to give consideration to that matter.
I am, therefore, of the opinion that the conviction in this case was not for an offense involving moral turpitude.
We are, therefore, of the opinion that the lodged charge in this case is not sustained by the evidence, since it has not been established that the crime involves moral turpitude.
FINDINGS OF FACT: Upon the basis of the evidence adduced at the hearing and upon consideration of the entire case, it is found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States at the port of San Ysidro, Calif., in March or April 1936;
(3) That the respondent was not in possession of an unexpired immigration visa at the time of his last entry;
(4) That the respondent last entered the United States for permanent residence;
(5) That the respondent admits having committed the crime of driving a car without the owner's consent in violation of the California Vehicle Code, section 503, on January 9, 1936.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that he entered the United States without being in possession of an immigration visa;
(2) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he admits the commission of a felony or other crime or misdemeanor involving moral turpitude prior to entry, to wit: driving a car without the owner's consent in violation of the California Vehicle Code, section 503;
(3) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Canada at the expense of the Government.
OTHER FACTORS: The respondent testified that he first entered the United States during July 1919, returning to his home in Canada a few months later; that he was thereafter excluded at the port of Niagra Falls, N.Y., in September 1919. This latter fact has been verified.
He further testified that his wife divorced him in California in 1938; that he has no property in the United States, but that he has one brother in this country whose present whereabouts he does not know.
The Government introduced in evidence a copy of Federal Bureau of Investigation Form T-2 #1132155, indicating that the respondent has been arrested for suspected grand theft of an automobile, forgery, and vagrancy in addition to the crime previously discussed. Respondent admitted that this record relates to him.
ORDER: It is ordered that the alien be deported to Canada at Government expense solely on the charge contained in the warrant of arrest.