56075/273
Decided by the Board February 13, 1942.
Crime involving moral turpitude — Mailing obscene letter ( 18 U.S.C., section 334).
Mailing an obscene letter in violation of 18 U.S.C., section 334, is not a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1917 — Conviction within 5 years after entry for crime involving moral turpitude — mailing an obscene letter.
Mr. Jack Wasserman and Mr. J.H. Krug, Board attorney-examiners.
STATEMENT OF THE CASE: The warrant of arrest was issued herein on April 23, 1941, and served on May 23, 1941. A hearing was accorded the respondent on the last-mentioned date at which time he waived counsel.
The presiding inspector has recommended deportation.
The matter is now before this Board for review and decision.
DISCUSSION: The respondent testified that he is a native and citizen of Canada, aged 43, and that he last entered the United States at Rouses Point, N.Y., on March 20, 1935, as a returning legal resident, after a temporary absence of 10 days. He stated that he was admitted for permanent residence on July 19, 1927, and that he has resided in the United States since that date.
On March 7, 1941, the respondent was indicted in the United States District Court for the District of New Mexico under section 211 of the Criminal Code, as amended ( 18 U.S.C.A., sec. 334) for mailing an obscene letter on December 8, 1938, knowing the same to be obscene. He pleaded guilty and received a sentence on March 26, 1941, of 12 months and a fine of $500.
The respondent was convicted more than 5 years after his last entry. However, the commission of his offense was within the 5-year period and therefore within the requirements of section 19 of the Immigration Act of 1917, as amended ( United States ex rel. Millard v. Tuttle, 46 F. 2d 342).
The sole question presented for review is whether a conviction under section 211 of the Criminal Code, as amended ( 18 U.S.C.A., sec. 334) involves moral turpitude. This section so far as pertinent, provides:
Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character * * * is hereby declared to be nonmailable matter * * *. Whoever shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable, * * * shall be fined not more than $5,000, or imprisoned not more than 5 years, or both. * * *
Our previous determinations on the issue whether this crime involves moral turpitude are in conflict. In re P---- C---- (55907/965) March 20, 1936, and In re F---- S---- (55974/523) January 25, 1939, held that a violation of this section did involve moral turpitude. The opinion in the former case stated:
* * * "Obscenity" merely as such (that is, dissociated from blasphemy and sedition or a tendency to provoke a breach of the peace in private revenge) was not punishable at common law * * * Schroeder, Obscene Literature and Constitutional Law (1911) 41.
The nature of this * * * offense appears to be that of violation of a criminal statute, although it has to do with the Mail Service. It is not, as in the case of the Harrison Narcotic Act, a matter which can be construed as being a revenue measure, and it does not appear there is any reason for the prohibition of sending obscene matter through the mails other than the criminal and offensive nature of the act. It is believed that the offense is one involving moral turpitude.In re F---- S---- is a decision that the crime involves moral turpitude without discussion of a revealing nature.
An opposite conclusion was reached in the most recent decision of the Board in the case of In re C---- S---- (56011/918) November 14, 1939, in which the following statements appear:
In the instant case, it is not apparent from the designation of the offense that it ipso facto involves moral turpitude * * * In ex parte Jackson, 96 U.S. 727, the constitutionality of section 334, supra, was upheld on the ground that under the power vested in Congress by the Constitution to establish post offices and post roads, Congress had power to designate what might be carried in the mails and what could be excluded. It will be perceived that this provision was upheld solely on the ground of being a regulation of the postal laws; otherwise it would be considered an interference with the police powers of the State.
* * * it is submitted that Congress in enacting section 334, supra, made no attempt to declare what was, or what was not moral. The offenses appear to be mala prohibita as distinguished from mala per se; and the gravity of punishment meted out is no criterion as to the element of moral turpitude.
It is found, therefore, that it has not been established that the offenses for which respondent was convicted and sentenced to imprisonment involve the ingredient of moral turpitude, as required by section 19, supra.
Careful reflection upon the problem before us necessarily requires an inquiry into the elements comprising the offense of mailing an obscene letter. Reference may be made to the definitions of the word "obscene" contained in the reported cases.
In United States v. Martin, 50 F. 918, it was said:
A very clear definition of "obscene" is "that which is offensive to chastity and modesty" United States v. Harman, 45 F.R. 414.Swearingen v. United States, 161 U.S. 446, at 450 and 451, states:
We, however, prefer to regard the words "obscene, lewd, or lascivious," used in the statute, as describing one and the same offense. * * * The words "obscene," "lewd," and "lascivious," as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecution for obscene libel.
To the same effect see: United States v. Clarke, 38 F. 500 and Dysart v. United States, 272 U.S. 655, 657. As originally drafted the statute (R.S., section 3893) did not contain the word "filthy." This term was added by amendment in 1909 ( 35 Stat. 1088, 1129), which inserted the words "and every filthy." By this amendment Congress added a new and additional class of unmailable matter ( United States v. Limehouse, 285 U.S. 424).
At common law in prosecutions for obscene libels and under the statute, the fact that the publication was prompted by good and innocent motives or written in the interest of social reform or moral betterment or with philanthropic purposes is no defense. In Queen v. Hicklin, L.R. 3, Q.B. 360; 37 L.J.M.C. 89 (1868), the defendant published a pamphlet with the honest and bona-fide intention of exposing the practice and errors of the confessional system in the Roman Catholic Church. The court ruled that if the work in itself be obscene, its publication is an indictable misdemeanor, however innocent the motive of the publisher. In Rosen v. United States, 161 U.S. 29, the Supreme Court said, at pages 41-42:
The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character, and if it was of that character and was deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails * * *.
Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious.
In accord with these views are: Odgers on Libel and Slander, sixth edition, pages 405-407; II. Wharton's Criminal Law, twelfth edition, pages 2271-2275; United States v. Clarke, 38 F. 500; Knowles v. United States, 170 F. 409; United States v. Harmon, 45 F. 414, reversed on other grounds, 50 F. 921; Magon v. United States, 248 F. 201, certiorari denied 249 U.S. 618; and Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 53, 66 (1938). In United States v. Dennett, 39 F. 2d 564 (C.C.A. 2d, 1930), the court said, at page 568:
It is doubtless true that the personal motive of the defendant in distributing her pamphlet could have no bearing on the question whether she violated the law. Her own belief that a really obscene pamphlet would pay the price for its obscenity by means of intrinsic merits would leave her as much as ever under the ban of the statute.
On the bases of the foregoing, it is necessary to determine whether mailing an obscene letter involves moral turpitude. It has been decided that the kindred crime of maliciously publishing a defamatory libel does not ( United States ex rel. Mylius v. Uhl, 203 F. 152, aff'd 210 F. 860.) The lower court's opinion in this case, at page 154, is particularly pertinent:
"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. Corporations are convicted of criminal libel but their guilt hardly implies their moral obliquity. So a mistake of facts or innocent intention does not excuse; malice does not imply personal ill will and the truth cannot be shown to exculpate unless — according to the English law — it appear that the public interests required the publication. Upon such requirements of proof it seems manifest that a conviction of libel establishes little concerning the moral status of the person convicted.
All this, however, does not tend to minimize the serious character of criminal libels. The very grievousness of the wrongs they inflict and the difficulty of reaching responsible persons forces the imputation of responsibility. The well-being of society resuires that persons only indirectly responsible should be held liable and that few obstacles should stand in the way of establishing their guilt. But every step in the direction of widening the scope of the law of libel and of eliminating defenses of the want of personal participation is a step away from establishing the crime as one involving personal baseness or depravity.
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 inadvertence 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, March 1, 1923; United States ex rel. Mongiovi v. Karnuth, 30 F. 2d 825). 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 United States ex rel. Meyer v. Day, 54 F. 2d 336 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 ex rel. Shladzien v. Warden, 45 F. 2d 204, 205 (D.C., Pa.). [Italics supplied.]
Not every offense contrary to good morals involves moral turpitude. 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.
A person who sends through the mails a letter suggesting fornication may be indicted under 18 U.S.C., sec. 334, because the letter is regarded as obscene. ( See United States v. Martin, 50 F. 918.) However we have held that fornication itself does not involve moral turpitude ( In re C---- R---- G---- (55950/392), Aug. 19, 1937). And hence the offense of sending a letter suggesting fornication should not be regarded as involving moral turpitude.
Cf. Chafee, Free Speech in the United States (1941) pp. 150-151: "The absurd and unjust holding in some of these prosecutions for the use of indecent or otherwise objectionable language furnish a sharp warning against any creation of new verbal crimes. Thus, the test of obscenity is very vague, and many decisions have utterly failed to distinguish nasty talk or the sale of unsuitable books to the young from the serious discussion of topics of great social significance."
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." United States ex rel. Mylius v. Uhl, 210 F. 860, 863.
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 ( United States ex rel. Robinson v. Day, 51 F. 2d 1022 (C.C.A. 2d 1931)).
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent is an alien, native and citizen of Canada;
(2) That the respondent last entered the United States at Rouses Point, N.Y., on March 20, 1935, and was admitted as a returning resident;
(3) That the respondent was convicted on March 26, 1941, in the United States District Court for the District of New Mexico of the offense of mailing an obscene letter, committed on December 8, 1938, in violation of section 211 of the Criminal Code as amended ( 18 U.S.C. sec. 334) and was sentenced to imprisonment for 12 months.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
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 to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: mailing an obscene letter.
OTHER FACTORS: The respondent was married in 1926 and again in 1938, without having obtained a divorce from his first wife. He testifies that in 1937 he was arrested for theft at Glens Falls, N.Y., and given a fine and suspended sentence. His mother and two sisters live in California, and his first wife also resides in the United States.
ORDER: It is ordered that the warrant of arrest be canceled and that the proceeding be closed.