A-4569802.
Decided by Board September 26, 1946. Ruling by Attorney General May 29, 1947.
Crime involving moral turpitude — Assault with a deadly weapon — Section 240 and section 245 of the California Penal Code — Robbery — Second degree — Sections 211 and 211 (a), and section 213 of the California Penal Code.
1. Assault with a deadly weapon in violation of section 245 of the California Penal Code is a crime involving moral turpitude.
2. Robbery, second degree in violation of section 213 of the California Penal Code is a crime involving moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes — Robbery and assault with a deadly weapon.
BEFORE THE BOARD
(September 26, 1946)
Discussion: Respondent is a native and citizen of Mexico, 43 years old. He stated that he entered the United States in 1906. When this entry could not be verified, he changed his testimony stating that he entered in 1910. He claims never to have left the United States since his original entry.
In October 1923, in California, respondent was sentenced to imprisonment for the term prescribed by law upon his plea of guilty to having committed the crime of second degree robbery on or about August 17, 1923. Second degree robbery is punishable by imprisonment in the State Prison for not less than 1 year (sec. 213, California Penal Code). The period of respondent's imprisonment was later fixed at 10 years, of which he states he served 9½.
On January 25, 1944, respondent was sentenced to imprisonment for 1 year in the Los Angeles County Jail, upon his plea of guilty to having committed the crime of assault with a deadly weapon in California on or about September 17, 1943. He has served this sentence.
The applicable portion of the Immigration Act of 1917 provides for the deportation of any alien "sentenced more than once to such a term of imprisonment (1 year or more) because of conviction in this country of any crime involving moral turpitude committed at any time after entry." Clearly, the first crime for which respondent was sentenced, second degree robbery (defined in secs. 211 and 211 (a) of the California Penal Code), is a crime involving moral turpitude. See U.S. ex rel. Cerami v. Uhl, 78 F. (2d) 698 (C.C.A. 2d, 1935). Whether assault with a deadly weapon as defined by California law is a crime involving moral turpitude requires more discussion.
Assault with a deadly weapon in general has been held to be a crime involving moral turpitude. In 39 Opinion of the Attorney General 95, 98 (1935), it is stated:
The above-quoted portion of the decree of the Italian court shows that the alien has been convicted of the crime of wilfully assaulting and seriously injuring another by shooting him with a pistol. Judging from this crime by the standards prevailing in the United States, as those standards have been announced in the decisions of our courts, it is one involving moral turpitude. According to those standards any crime which involves an act intrinsically and morally wrong and malum in se, or an act done contrary to justice, honesty, principle, or good morals, is a crime involving moral turpitude (37 Op. A.G. 293; Tillinghast v. Edmead, 31 F. (2d) 81; Coykendall v. Skrmetta, 22 F. (2d) 120; and applying this rule, our courts have held that a wilful assault with a dangerous weapon involves moral turpitude. United States v. Day, 15 F. (2d) 391; Weedin v. Tayokichi Yamada, 4 F. (2d) 455; U.S. v. Watchorn, 164 Fed. 152; Ciambelli v. Johnson, 12 F. (2d) 465; U.S. v. Corsi, supra; United States v. Curran, 12 F. (2d) 394; United States v. Doak, 5 Fed. Supp. 561; United States v. Smith, 8 F. (2d) 663).
In U.S. ex rel. Morlacci v. Smith. 8 F. (2d) 663 (W.D.N.Y., 1925), the last case cited by the Attorney General, the court states:
Mere assault and battery concededly do not involve such a degree of depravity, but an assault with a deadly weapon, in this case a revolver, and shooting a person is simply an act which includes something done by the assailant contrary to good morals and proper conduct. * * *
In U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933), it was stated:
Many of the crimes so defined plainly involve moral turpitude. It is conceded that assault with a deadly weapon would be of this character.
We turn now to this assault with a deadly weapon in California. The indictment alleges that the defendant "did willfully, unlawfully, and feloniously commit an assault with a deadly weapon upon one J---- C---- a human being." The applicable provisions of the California Penal Code are sections 240 and 245.
We note that the weapon used was not specified. Apparently the practice in California in this connection is not uniform since in three other cases involving this offense, which we have before us, the weapon was specified. Matter of M----, 3848117 (a gun); Matter of B----, 56156/962 (a knife); Matter of P----, 56008/79 (renumbered A-1905140) (an axe).
Under this statute, however, which requires that the weapon used be "deadly", we do not believe it is material whether or not the weapon is specified in the indictment. This crime may be distinguished from that involved in Matter of B----, 56018/361 (May 27, 1941) (Mason's Minn. Stats. (1927), sec. 10098), where the statute required only that a weapon be used. In that case it is understandable that the Attorney General held the crime could not be considered one involving moral turpitude where the weapon used was not specified since it conceivably might not have been a dangerous weapon.
Section 240. Assault defined. An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.
Section 245. Assault with a deadly weapon: Punishment. Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison not exceeding 10 years, or in a county jail not exceeding 1 year, or by fine and imprisonment.
In McKinney's Calif. Jurisprudence (1921) 13 Cal. Jur. 2021, it is stated:
Assault with a deadly weapon. The elements of aggravated assaults have been outlined in the code. One of the most important statutory assaults is "an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury." An assault with a deadly weapon is an offense which necessarily includes within it the offense of assault.
Since section 245 provides the punishment for an assault committed with certain attendant circumstances and section 240 defines an assault, it is clear that to ascertain the elements of assault with a deadly weapon the two sections must be read together. Thus an assault with a deadly weapon is "an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another" "with a deadly weapon." The crime constituting an attempt to do an injury necessarily includes the intent to do an injury since an attempt to commit a crime always includes the intent.
Miller, Handbook of Criminal Law (1934), p. 306:
Again, assault is generally considered as an attempt to commit a battery; and in attempts to commit crimes, we have seen it is universally held an intent to commit the crime is an essential element.
1 Wharton's Criminal Law (1932 Ed.), section 212:
An attempt is an intended apparent unfinished crime. It must be intended, since it is of its nature that it should be committed in order to effect a specific criminal result.
Prior to an amendment in 1874 (Calif. Amdts. to the Codes, 1873 — 1874, p. 428), section 245 provided:
Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart, commits an assault upon the person of another with a deadly weapon, instrument, or other thing, is punishable by imprisonment not exceeding 2 years; or by fine not exceeding $500, or by both * * *.
In Weedin v. Yamada, 4 F. (2d) 455 (C.C.A. 9th, 1924), a Washington statute (Rem. Bal. Code 1910, sec. 2749), which is phrased in the same language as the early California statute, was held to define a crime involving moral turpitude. The question with which we are here presented is whether under the present wording of the statute the crime is also of such a nature.
Comparing the earlier with the present statute, we note that the former was subjective in concept while the latter is objective. The earlier statute punished an assault with a deadly weapon accompanied by alternate attendant circumstances describing the state of mind of the assailant, i.e., he had no "just cause or excuse" or "no considerable provocation" or showed "an abandoned and malignant heart." And these alternates were to be accompanied by "an intent to do bodily harm." The new version is more concise, and the two alternated attendant circumstances are objective, i.e., the assault was committed with a deadly weapon or instrument, or it was committed by means of force likely to produce great bodily injury. We are convinced, however, that the offense described in the later statute is no less serious.
It may be noted immediately that the earlier crime was punishable by imprisonment not exceeding 2 years or a $500 fine while the present crime is punishable by imprisonment not exceeding 10 years or a $5,000 fine. While the punishment provided is not always a guide as to whether a crime involves moral turpitude, it is certainly an indication of the seriousness with which the California legislature regarded the two offenses.
The imprisonment was extended to 10 years and the fine to $5,000 in 1921 (Stats. 1921, p. 86); the present wording providing for a maximum of 10 years in the State prison or 1 year in a county jail or a $5,000 fine is the result of an amendment in 1933 (Stats. 1933, p. 2216).
After studying the California cases on the crime as presently defined we are also convinced that although the former statute specifically prescribed that the act be committed "with intent to do bodily harm" and the later version does not, the crime is still limited to intentional acts and does not include the inflicting of injuries by accident. In People v. Ramierez, 64 Cal. App. 358 (1923), which involved a conviction for assault with a deadly weapon the court stated:
A person must be presumed to intend to do that which he voluntarily and willfully does in fact do and must also be presumed to intend all the natural, probable, and usual consequences of his own acts.
Or as stated in People v. Leyba, 74 Cal. 407 (1887):
When an assault is made with a deadly weapon felonious intent is implied.
It has been held that the intent in assault with a deadly weapon like the "present ability" must be proved but need not be alleged in the indictment or information. People v. Forney, 18 Cal. 118 (1889); People v. Savercool, 81 Cal. 650 (1889).
At first glance the old case of People v. Turner, 65 Cal. 540 (1884), might appear to hold that the change in the wording of the statute has eliminated the element of intent from the crime. A careful examination of the case reveals that this is not so, however. In that case D---- admitted having shot C----. He was charged with assault with intent to murder, but the jury found him guilty of assault with a deadly weapon. The verdict was in the following language: "We, the jury, in the case of * * * find the defendant guilty of an assault upon the person of * * * with a deadly weapon." D---- contended that the conviction was no good because the jury had failed to state that the assault had been committed "with intent to produce great bodily injury." The court then stated: "We think the amendment has worked a material change in the section, and that, as it now stands, it is unnecessary to charge in the indictment, or for the jury to find, that the assault was made with a deadly weapon with intent to produce great bodily injury. It is sufficient to follow the language of the statute in charging the offense, and by parity of reasoning, it is sufficient for the jury to find in the language of the charge." Considering the situation to which the court was addressing itself, all the case may be regarded as holding is that both the indictment and the formal finding of the jury may be worded in the present language of the statute.
In People v. Franklin, 70 Cal. 641 (1886); People v. Marseiler, 70 Cal. 98 (1886); People v. Hower, 151 Cal. 638 (1907); People v. Lim Dum Dong, 26 C.A. (2d) 135 (1938), the accused was charged with assault with intent to murder. The evidence established that he was intoxicated when he committed the crime, and since under California law intoxication may be taken into consideration where "the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of the crime," his intoxication was considered in determining whether he was capable of forming the specific intent to murder his victim but did not prevent him from being guilty of assault with a deadly weapon. We do not believe, however, that drunkenness is a sufficient justification for shooting, stabbing, or otherwise wounding people with deadly weapons — so as to take such offenses out of the realm of moral turpitude. It has been specifically so held. U.S. ex rel. Mazillo v. Day, 15 F. (2d) 391 (S.D.N.Y., 1926). Similarly, we do not believe that the holding in People v. Arnold, 116 Cal. 692 (1897), that malice and premeditated design are not necessary elements of assault with a deadly weapon would warrant our concluding that it is not a crime involving moral turpitude. There a husband "dragged her (his wife) from her horse, struck her upon the head with a rock, knocked her down rendering her insensible, and cut her on the scalp with a knife." The defendant was charged with intent to murder but was convicted of assault with a deadly weapon. On appeal he claimed an absence of malice and premeditated design, and the court stated that the latter were not necessary elements of assault with a deadly weapon. Clearly, however, there was no question of unintentional injury.
Sect. 22 of the Cal. Penal Code.
It is clear that assault with a deadly weapon in California does not include an accidental shooting. People v. Romero, 17 Cal. App. 680 (1911); People v. Hanson, 220 Cal. 589 (1934). Nor is the crime committed when a weapon is merely brandished to scare someone. There must be actual use or attempt to use the deadly weapon. In People v. Dodel, 77 Cal. 293 (1888), the Supreme Court reversed the lower court for refusing to give the following instructions:
In the Romero case D---- and C---- were living together as husband and wife. D---- heard that C---- had been going out with other men. He "attacked her, repeatedly knocked her down, slashed her clothes and cut her with a knife." That afternoon D---- shot C---- in the stomach. Later he claimed that he intended to shoot a rabbit and shot C---- by mistake. On appeal from a conviction of an assault with a deadly weapon, the court stated that the question was whether the shooting was intentional or accidental, and on the evidence the jury might well have found that it was intentional.
In the Hanson case, the court stated:
The appellant seeks to transform this vicious attack on an officer of the law, which by reason of his desperate defense, fell short of murder, into a misdemeanor of the character of a street brawl. He advises that he did not intend to shoot the officer. The jury was fully justified in inferring an unlawful intention from the fact that he seized the gun, and that it was discharged when pointed at the officer.
See also People v. Ross, 19 Cal. App. 469 (1912), where D---- pointed a pistol at C---- and threatened to shoot him, but "the uncontradicted evidence that the defendant had every chance to fire the gun if he wanted to, that nothing prevented him from doing it, that he did not do so and made no effort on his part to discharge the firearm makes it apparent that no circumstances independent of the will of the accused intervened to prevent the consummation of the assault." The conviction was reversed.
To constitute an assault, the defendant must have the intent to strike, the ability to do so, and must have made the attempt to strike.
And where as in this case, the assault is charged to have been committed with a deadly weapon, there must have been an attempt to strike with or use the deadly weapon.
If the weapon is a gun, it must be loaded. In People v. Sylva, 143 Cal. 62 (1940) the evidence was in conflict as to whether the gun was loaded and whether there was any attempt to discharge it. The court said:
See also People v. Bennett, 37 Cal. App. 324 (1918), where D---- first aimed an unloaded gun, and as the argument continued he refilled it and shot C----. He was convicted for assault with a deadly weapon for his latter acts, but as to his earlier action the court approved the following instruction. "The pointing of an unloaded gun at the prosecuting witness without any attempt to use it otherwise, is not an assault with a deadly weapon. * * *"
Under these circumstances it must be concluded that if the gun was not loaded there was no assault, either with a deadly weapon or otherwise. Pointing an unloaded gun at another, accompanied by a threat to discharge it without any attempt to use it, except by shooting, does not constitute an assault. There is in such case no present ability to commit a violent injury on the person threatened * * *.
The seriousness of the offense of assault with a deadly weapon is emphasized by the presence in the California statutes of a lesser crime which includes the mere threat to use a weapon or the brandishing of an unloaded gun.
Section 147 of the California Penal Code provides:
Drawing, exhibiting or using firearm or other deadly weapon. Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm whether loaded or unloaded, or any deadly weapon whatsoever, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarel is guilty of a misdemeanor.
In assault with deadly weapons, firearms and knives are most frequently found to be the weapon involved. There may be others, however. In general: "A deadly weapon is one likely to produce death or great bodily injury." People v. Fuqua, 58 Cal. 245 (1881), and "in determining whether an instrument, not inherently deadly or dangerous, assumes those characteristics, recourse may be had to the nature of the weapon, the manner of its use, and the location on the body of the injuries inflicted and the extent of such injuries." People v. Russell, 59 C.A. (2d) 660, 139 P. (2d) 661, 663 (1943). The following have been held to be deadly weapons as used on the victim: a large shovel, People v. Weist, 10 Cal. App. 460 (1909); an iron bar, People v. Carr, 131 Cal. App. 644 (1933); a baseball bat, People v. Williams, 30 C.A. (2d) 234 (1938); a wooden club, People v. Wilson, 33 C.A. (2d) 194 (1939); a nail file, People v. Russell, supra.
We have carefully studied the California cases interpreting sections 240 and 245 of the Penal Code since we are bound by these cases as to the elements of assault with a deadly weapon in California. While we are not bound by California authorities in considering what in general is a crime involving moral turpitude under the immigration laws, we have noted with interest the case of In re Rothrock, 16 Cal. (2d) 449 (1940). That was a disbarment proceeding pursuant to sections 6101 and 6102 of the California Business and Professions Code whereunder conviction for a felony or misdemeanor involving moral turpitude constitutes cause for disbarment or suspension of an attorney. It was there held that assault with a deadly weapon in California does not as a matter of law always involve moral turpitude, that in determining whether a conviction for such an offense involves moral turpitude under the Business and Professions Code, it is the court's duty to examine the particular offense of which the attorney was convicted. And considering the facts established by the record in the case before them and the light sentence imposed, the court concludes that the particular offense did not involve moral turpitude. We find no facts in the case before us, however, nor in several others that we are presently considering, which would warrant such a conclusion. And we cannot conclude that the Rothrock decision makes it necessary for us to hold that the crime of assault with a deadly weapon in California never involves moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, 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 in 1910;
(3) That in October 1923 the respondent was sentenced to 10 years' imprisonment in the State prison for the crime of robbery, second degree, committed in California, on or about August 17, 1923;
(4) That in January 1944 the respondent was sentenced to 1 year's imprisonment in the Los Angeles County Jail for the crime of assault with a deadly weapon committed in California on or about September 17, 1943.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of February 5, 1917, respondent is subject to deportation on the ground that on or after May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude committed after entry, to wit: Robbery, 2d degree, and Assault with a deadly weapon;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico at Government expense.Other Factors: Respondent testified that he is a laborer. He is single and his only relatives in the United States are a sister and a half-brother.
Order: It is ordered that the alien be deported to Mexico at Government expense on the charge stated in the warrant of arrest.
The decision and order of the majority of the Board of Immigration Appeals dated September 26, 1946 are hereby approved.
Discussion: The respondent is a 41-year-old native and citizen of Mexico who has been living in the United States continuously since he was about 7 years of age, having entered this country for the first and last time at El Paso, Tex., in 1910. In 1923 the respondent was convicted of a crime which concededly involves moral turpitude.
In September 1943 the alien was again arrested in California, on a charge of assault with a deadly weapon, the offense having allegedly been committed on or about September 17, 1943. Upon the advice of counsel the respondent pleaded guilty to the offense charged in the information, and on January 25, 1944, he was sentenced to imprisonment in the Los Angeles County Jail for a term of 1 year. He has served this sentence.
The applicable portion of section 19 of the act of February 5, 1917, provides for the deportation of any alien "sentenced more than once to such a term of imprisonment (1 year or more) because of conviction in this country of any crime involving moral turpitude committed at any time after entry." To sustain the warrant charge under this provision we must find, among other things, that both the offenses of which the respondent was convicted involve moral turpitude. If one of them does not, the charge cannot be sustained and the proceedings must be dismissed.
The sole issue presented is whether assault with a deadly weapon, as defined by section 245 of the California Penal Code, involves moral turpitude. It has been our considered administrative practice to hold that offenses similar to the one under consideration do not comprehend the type of conduct falling under the ban of section 19 of the act of February 5, 1917. In fact, we recently concluded in Matter of T---- G----, 56166/377 (May 30, 1944), that the precise statute now before us does not involve moral turpitude. This holding was subsequently reaffirmed in Matter of P----, 55858/216 (June 10, 1944) and Matter of M----, AR-010044 (renumbered, A-6064935) (December 12, 1944). Moreover, in Matter of C----, 56076/664 (March 12, 1943), the Board held that assault by means of force likely to produce great bodily injury as defined by the same provision of California law now under consideration does not involve moral turpitude.
The majority of the Board has changed its mind. I still adhere to and see no reason why we should now depart from our prior holdings. On the contrary, I feel that judicial authority and an opinion of the Attorney General preclude us from reaching any other conclusion.
In re Rothrock 16 Cal. (2d) 449 (1940).
Matter of B----, 56018/361 decided by Attorney General Jackson on May 27, 1941.
At the outset it should be observed that section 245 may be divided into three parts. The statute encompasses assaults with deadly weapons, assaults with instruments, and assaults "by means of force likely to produce great bodily injury". The last mentioned phrase has been repeatedly held to cover assaults committed merely by hands or fists and it can not be contended that such assaults are distinguishable from simple assaults which do not involve moral turpitude. However, the record of conviction in the instant case specifies that the alien assaulted another human being with a deadly weapon and the separable portion of the statute involved herein will be considered.
People v. Score, 48 Cal. App. (2d) 495; (1941); People v. Tallman, 69 Adv. Cal. App. Rep. 803 (1945).
See: infra.
The highest Court in California has recently had occasion to consider the precise question now before us insofar as it related to the disbarment of an attorney who had been convicted of assault with a deadly weapon, described in the indictment as a revolver. The unequivocal answer of this Court was that the offense did not involve moral turpitude. In re Rothrock, 16 Cal. (2d) 449 (1940). Of course the Court was not there concerned with construing the language of the immigration laws, but with the meaning of moral turpitude as found in section 6101 of the Business and Professions Code of California, which provides in part:
Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension as provided in section 6102. * * *
The record of conviction shall be conclusive evidence. * * *
The statute before the Board for interpretation is section 19 of the act of February 5, 1917. Though the statutes deal with unrelated and different matters, the Court's opinion in the Rothrock case makes it evident to me that the meaning of "moral turpitude" as used in each statute is indistinguishable, if not identical. The very tests used by the courts and by the Board to determine whether moral turpitude is involved under the immigration laws were used by the California Court to ascertain whether such conduct was present so far as the disbarment of Mr. Rothrock was concerned. For example, the California Court accepted the same definition of moral turpitude as is employed in immigration cases. Again, the determination of moral turpitude was made dependent upon the definition of the offense plus the record of conviction. Finally, the court in holding that section 245 of the Penal Code did not involve moral turpitude within the scope of section 6101 of the California Business and Professions Code referred in every instance, but one, to and analyzed cases arising under the Immigration laws.
See also In re Craig, 12 Cal. (2d) 93 (1938); In re O'Connel, 184 Cal. 584 (1920).
Ex parte George, infra, where the court held that a felonious assault which amounted to striking another with a large piece of firewood during a quarrel did not involve moral turpitude; Weedin v. Yamada, infra, which, stands for the proposition that assault with a deadly weapon in Washington does involve moral turpitude because the statute in that state requires a specific intent to do bodily injury; U.S. ex rel. Morlacci v. Smith, 8 F. (2d) 663 (W.D.N.Y. 1925), U.S. ex rel. Ciccerelli v. Curran, 12 F. (2d) 394 (C.C.A. 2d, 1936), U.S. ex rel. Mazzillo v. Day, 15 F. (2d) 391 (S.D.N.Y. 1931), cases involving the New York 2d degree assault statute, certain subdivisions of which the courts have held involved moral turpitude; Ciambelli ex rel. Maranci v. Johnson, infra, holding that an assault in Massachusetts upon a police officer, while armed with a razor did not involve moral turpitude because it was not charged that the assault was made with a razor; U.S. ex rel. Griffo v. McCandless, infra, concluding that aggravated assault and battery in an unspecified state did not involve moral turpitude, though the case arose in Pennsylvania; U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y. 1929), holding that 2d degree manslaughter in New York did not involve moral turpitude since the crime was "unaccompanied by a vicious motive or corrupt mind."
The Court thus summarized its position and the underscoring and the footnote reference are supplied:
In the absence of a statutory definition indicating that evil intent is inherent in the commission of the crime, the courts generally are reluctant to classify the crime of assault with a deadly weapon as one involving moral turpitude as a matter of law. Where the question has arisen in disbarment proceedings, such conduct has been deemed not to call for disbarment as a matter of course. A high degree of moral standards is required of an attorney, but the courts have not been inclined to impute moral turpitude in the commission of the lesser infractions of the penal laws which carry no reflection upon the attorney's moral fitness to practice law. The commission of such lesser offenses by an attorney in the heat of anger or as the result of physical or mental infirmities does not, without more, cast discredit upon the prestige of the legal profession or interfere with the efficient administration of the law and should not be deemed to involve moral turpitude. Our statute ( sec. 245 Pen. Code), does not define assault with a deadly weapon so as to indicate that it is an offense which by these tests involve moral turpitude as a matter of law. That it did not involve moral turpitude in the particular case may be reflected by the record of conviction, which is all that is before the court in this proceeding. That record consists of the charge of the offense to which the defendant pleaded guilty; the plea; and the judgment of conviction. (See sec. 1207, Pen. Code; 8 Cal. Jur., p. 474.) The light sentence imposed on the attorney indicates that the trial court was of the opinion that the offense to which a plea of guilty was entered did not involve moral turpitude. Our consideration of the record leads us to the same conclusion.
Mr. Rothrock was sentenced to 2 months in a county jail. The alien in this case was given a year's sentence in the county jail. The maximum sentence under the statute is 10 years in the State prison. Under section 17 of the California Penal Code, because of the nature of the sentence, the crime committed by the respondent is deemed to be only a misdemeanor and not a felony. It would, therefore, appear that the court in the instant case did not consider the offense to be very serious. In other cases involving the same statute aliens have been sentenced for only 60 or 90 days. See Matter of M----, 010044 (renumbered A-6064935) and Matter of V---- P----, 5765375.
An attorney has a double relationship and owes a double duty. He is an officer of the court ( Security Loan and Trust Company v. Estudillo, 134 Cal. 166 (1901); Pratt v. Browne, 135 Cal. 649 (1902); Fleming v. Hance, 153 Cal. 162 (1908), and he also occupies a fiduciary relation of the highest character with his client ( Cox v. Delmas, 99 Cal. 104 (1893)). It would be an understatement to say that the standard of conduct expected of an attorney is higher than that expected of an alien. Cf. Matter of Humphrey, 174 Cal. 290 (1917); Matter of Coffey, 123 Cal. 522 (1899). Attorneys are held to "the strictest observance at all times of the principles of truth, honesty, and fairness, * * * to the end that the public confidence in the due administration of justice be upheld, and the dignity and usefulness of the courts maintained." Matter of Humphrey, supra, p. 296.
It would follow from a consideration of the foregoing that if assault with a deadly weapon does not involve moral turpitude so far as disbarment proceedings against an attorney are concerned, a fortiori, it should not involve such conduct insofar as it bears upon the deportability of an alien. Whether the term "moral turpitude" appears in statutes pertaining to disbarment, revocation of physician's licenses, prosecution of matrimonial actions, impeachment of witnesses or in actions for slander or restitution, its construction has been the same. (See note, 43 Harvard Law Review 117 (1929) and Crimes Involving Moral Turpitude, Monthly Review, Immigration and Naturalization Service, March 1944.)
In a memorandum dated April 3, 1946, to the District Director of Los Angeles in Matter of T---- G----, 56166/377, the Acting Commissioner said:
In the case of In re Rothrock * * * the court held that one who had been convicted under section 245 of the California Penal Code had not been convicted of a crime involving moral turpitude.
Our proceeding would have to rest upon that section of the State statute in the case before you. The Federal Court in the event of habeas corpus proceedings, would doubtless feel bound to give the statute of the State, the interpretation of the highest court of the State. For this reason, irrespective of other considerations, it would seem unlikely that a deportation proceeding on a charge resting upon that section of the Penal Code could succeed.
The Rothrock case is controlling as to its interpretation of the California statute. In the absence of any other decision — and there are none — evaluating the moral turpitude of a crime defined by the California statute — this Board as an administrative body should follow this judicial precedent of the highest court of California.
The conclusion of the Rothrock case is fortified by the legislative history of section 245. In 1872 this section read as follows:
Every person who, with intent to do bodily harm, and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart, commits an assault upon the person of another with a deadly weapon, instrument, or other thing, is punishable by imprisonment in the State prison not exceeding 2 years; or by fine not exceeding $500, or by both. * * * [Italics supplied.]
On March 30, 1874, section 245 of the California Penal Code was amended to read as it does now and, except for the provision relating to the punishment, as it did at the time of the respondent's conviction. The effect of the change brought about in the statute by the amendment has been expressed by the Supreme Court of the State of California in People v. Turner, 65 Cal. 540 (1884) in these words:
"We think that the amendment has worked a material change in the section, and that, as it now stands, it is unnecessary to charge in the indictment, or for the jury to find, that the assault was made with a deadly weapon, with intent to produce great bodily injury." [Italics supplied.]
As the Court there said, the change in the statute was material and eliminated from the crime the element of specific intent to produce great bodily harm. The fact that the statute, as presently worded, does not require a specific evil, corrupt or malicious intent to do bodily harm, as distinguished from the general intent essential to the commission of simple assault, has been reached in numerous California decisions. (See People v. Hower, 151 Cal. 638 (1907); People v. Arnold, 116 Cal. 682 (1897); People v. Franklin, 70 Cal. 641 (1886); People v. Marseiler, 70 Cal. 98 (1886); People v. Lim Lum Dong, 26 C.A. (2) 135 (1938).) Under California law, as it has existed since the 1874 amendment, the state of mind of the assailant using a deadly weapon is not necessarily any different from one committing an ordinary so-called simple assault.
To obtain a conviction under the statute, it is not necessary to show serious injury or any injury at all. Malice is not an element of the crime. One may be convicted although his actions were the result of innocent motivations. Thus a conviction may be based upon criminal negligence. If criminal negligence causes death, it is well established that no moral turpitude is involved. If it does not result in death but in bodily injury can we reach the incongruous position of holding that such lesser offense does not involve moral turpitude? Clearly, we can not.
"To constitute the crime of assault within the meaning of section 245 of the Penal Code * * * it is not required * * * that the injuries inflicted be of serious nature" ( People v. McCoy, 25 Cal. (2d) 177 (1944)).
People v. Tallman, 69 Adv. Cal. App. Rep. 803, 812 (1945).
People v. Peak, 66 Cal. App. (2d) 894, 900 (1944).
In People v. Mendez, 67 Cal. App. 724, 727 (1924) the court in discussing section 245 stated: "The * * * instruction may well have been refused for the reason that it states that `in every crime there must exist a union of joint operation of act and intent.' It leaves out the element of criminal negligence which the statute contains (Pen. Code, sec. 20)." [Italics supplied.]
See to the same effect: People v. Price, 9 Cal. App. 218, 221 (1908) and People v. Peak, 66 Cal. App. (2d) 894, 902 (1944). In the latter case the court stated: "The element of criminal negligence is a substitute for proof of specific intent."
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d 825 (W.D.N.Y. 1929); In re Di Cola, 7 F. Supp. 194 (D.R.I. 1934).
See involuntary manslaughter provisions of California statute, sec. 192.
The Rothrock decision is not only in accord with established judicial precedents and administrative practice, but is also consistent with prior decisions of the Attorney General on this problem. In Matter of B----, 56018/361, the Attorney General on May 27, 1941, reversed the Board and held that second degree assault in Minnesota did not involve moral turpitude even where a specific malicious intent to do grievous bodily injury was present. His conclusion was based on the fact that the indictment failed to specify the nature of the weapon employed in the assault. The Attorney General required that not only a specific intent to do harm be present, but that the assault be perpetrated with a specified dangerous weapon. In the instant case, the weapon was not specified, and the necessary specific intent to do grievous bodily injury was not required by the statute nor was it supplied in the information.
Moral turpitude is dependent upon the depraved or vicious motive of the alien. It is not dependent upon his "constructive" or "imputed" intent but upon his actual intent or motive. This rule is summarized in U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 W.D.N.Y. 1929) where it is stated:
Crimes Involving Moral Turpitude, Monthly Review, Immigration and Naturalization Service, March 1944 at p. 5.; U.S. ex rel. Mongiovi v. Karnuth, infra; U.S. ex rel. Meyer v. Day 54 F. (2d) 336 (C.C.A. 2d, 1931); U.S. ex rel. Shladzien v. Warden, infra.
The Solicitor of the Department of Justice not long since, in a definition of crimes involving moral turpitude for the information of immigration officers, specified a number of offenses which, in his judgment, involved moral turpitude, and excepted offenses which were "the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, or of mistaken principles, unaccompanied by a vicious motive or corrupt mind." Although this general summary is vague and indefinite, yet I think that the commission of manslaughter in the second degree is "unaccompanied by a vicious motive or corrupt mind." [Italics supplied.]
With this test in mind, the question as to what assaults involve moral turpitude may be examined.
Fighting, raising cain, and simple assaults do not involve moral turpitude.
Pollock v. State, 101 S.W. 231 (Texas, 1907).
Bird v. State, 256 S.W. 277, 279 (Texas, 1923).
Insofar as a so-called simple assault is concerned, and this crime is usually thought of as involving primitive means ordinarily resorted to by individuals in inflicting punishment upon another (2 R.C.L. 543), it has been definitely decided that no moral turpitude is involved therein ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933); U.S. ex rel. Griffo v. McCandless, 28 F. 2d) 287 (E.D. Pa. 1928); U.S. ex rel. Morlacci v. Smith, 8 F. (2d) 663 (W.D.N.Y., 1925); Ciambelli ex rel. Maranci v. Johnson, 12 F. (2d) 465 (D. Mass., 1926)). The basis for such a holding is that a specific, malicious intent to do bodily harm, or in other words, a vicious motive, corrupt mind, or evil intent, as distinguished from the general intent that is inherent in simple assault, is not an essential or necessary element of this crime. (Cf. U.S. ex rel. Shladzien v. Warden, infra; 1 Wharton's Criminal Law (12th ed.), p. 1101.) For example, an attempted blow, motivated by tomfoolery, would be an assault, notwithstanding the absence of any intent to inflict bodily injury, for such an intent is not necessary to constitute an assault (Wharton's Criminal Law, supra, p. 1101 and cases there cited). It would be difficult to stigmatize a person convicted of assault under these circumstances as base, vile, or depraved. In addition, it should be noted that aggravated assaults do not necessarily involve moral turpitude, nor do assaults upon police officers.
Ciambelli ex rel. Maranci v. Johnson, supra.
On the other hand assaults with intent to murder, to kill, to rob, or with intent to inflict bodily harm have been held to involve the vicious motive which is requisite for moral turpitude.
Clark v. Orabona, 59 F. (2d) 187 (C.C.A. 1, 1932) cert. denied 287 U.S. 629.
Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930).
U.S. ex rel. Rizzio v. Kenney, 50 F. (2d) 418 (N.D. Conn. 1931).
Weedin v. Yamada, 4 F. (2d) 455 (C.C.A. 9th, 1925).
In between these groups of cases are those where serious bodily harm results although there is no specific intent to cause such harm. Thus it has been held that an assault with a stone which split the victim's head open and an assault by striking another in a quarrel with a large piece of firewood do not involve moral turpitude. On California standards both of these assaults would have been with deadly weapons.
U.S. ex rel. Ciarello v. Reimer, 32 F. Supp. 797 (S.D.N.Y. 1940).
Ex parte George, 180 Fed. 785 (N.D. Ala., 1910).
A deadly weapon is one likely to produce great bodily injury. People v. Fuqua, 58 Cal. 245 (1881). It may be a wooden club. People v. Wilson, 33 Cal App. (2d) 194 (1939) or even a nail file. People v. Russell, 59 Cal. App. (2d) 660 (1943).
In a comment on moral turpitude in 43 Harvard Law Review 117 (1929) it is stated that:
Whether or not it involves moral turpitude to assault with a deadly weapon depends on the jurisdiction.
In 39 Op. Atty. Gen. 95 (August 19, 1937) the Attorney General stated that:
Our courts have held that wilful assault with a dangerous weapon involves moral turpitude.
The Attorney General's language and the cases cited by him in this opinion, indicate that an essential element of the offense was the wilfulness accompanying the assault, or in other words, the corrupt mind, or evil intent to do serious bodily injury.
In U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370, 376 (N.D.N.Y. 1932) the court said:
If a person * * * protecting himself and his property, through fear or error of judgment, uses more force than necessary in protecting himself, and thereby inflicts grevious bodily harm on his assailant, and by reason of such excessive force is convicted of assault, second degree, it would be rather a strained and technical construction to hold that he was guilty of a crime involving moral turpitude. [Italics supplied.]
Under the facts in the case put by the court in the Valenti case, an assault with a deadly weapon could be established in California.
In the instant case, the alien's and his attorney's testimony which constitute the only evidence in the record in this regard reads:
"This man Jose Castro, we was drinking at a bar, one of those beer joints on North Main Street, Los Angeles, so I was drinking there and this man kept on looking at me so I didn't like his looks so I was drinking with a girl friend of mine so I told her that I was going to the toilet so the man followed me into the toilet and when I got through I came out of the door and this guy jumped and he scratched my nose and I didn't know what to do, I didn't know whether he would kill me or whether he would shoot me so I got my knife and cut him.
"Q. Where did you cut him? "A. Here (indicating neck on right side).
"By Counsel: I wish to state for the record at this time that on advice of counsel, I, representing him during the proceedings, felt that it would be difficult if not impossible to successfully defend the charge although, in my judgment the case amounted to one of self defense, it was incapable of being proved."
The determinative element in assaults with weapons is the specific intent to do bodily harm. In U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y. 1929) the court held that involuntary manslaughter did not involve moral turpitude, stating:
"The instant case is quite different from Weedin v. Yamada (C.C.A.) 4 F. (2d) 455 and U.S. ex rel. Morlacci v. Smith, etc., 8 F. (2d) 663, decided by this court, wherein it was ruled that, as the crime of assault, as defined in respective state statutes, was committed with intent to do bodily harm, the offense involved moral turpitude." [Italics supplied.]
U.S. ex rel. Morlacci v. Smith, supra, involved assault with a deadly weapon in New York. The New York statute therefore requires the presence of a specific wrongful intent to do harm to sustain a conviction thereunder. This fact explains the dictum in U.S. ex rel. Zaffarano v. Corsi, supra, where the court in speaking about the presence of moral turpitude in 2d degree assault in New York said (p. 758): "It is conceded that assault with a dangerous weapon would be of this character."
That assault under section 245 of the California Code is a less serious offense than assault with a deadly weapon in other jurisdictions is emphasized by the fact that it may only be a misdemeanor by the fact that in our experience sentences thereunder have been as light as 60 days, by the fact that convictions may be obtained thereunder for assaults with hands or fists, or for criminal negligence, by the fact that specific intent to do bodily harm is not an element, by the alteration which occurred in the statute, and by the other provisions of the Code defining more serious assaults.
This would depend on the sentence. It was a misdemeanor in the instant case. See California Penal Code, sec. 17 et seq.
Matter of M----, 010044 (renumbered A-6064935).
Note 3 supra.
Note 11 supra.
In re Rothrock, supra; People v. Turner, supra.
On March 30, 1874.
Thus, in addition to the general crime of assault and the type as described in section 245, California also has statutes dealing with assaults with intent to commit murder (California Penal Code, sec. 217), assaults with intent to commit rape, any infamous crime against nature, mayhem, robbery, or grand larcency (California Penal Code, sec. 220), assaults with intent to commit any felony (California Penal Code, sec. 221), and assaults with caustic chemicals with intent to injure or disfigure (California Penal Code, sec. 244). This latter group of crimes requires a specific intent, as distinguished from the general intent inherent in a so-called simple assault to sustain a prosecution thereunder. Because of this prerequisite, they are, of course, much more serious in their nature than a simple assault, an indictment, or information for which in California would be found under section 240 of the Penal Code. Thus if the specific intent in this class of assaults is to commit a crime which involves moral turpitude, then it would clearly follow that the offense of assault with intent to commit this crime would include the same conduct.
Upon the authority of the Rothrock case and the California cases indicating that convictions may be obtained for criminal negligence under the statute, it is clear that the statute is one which defines a crime which does not inherently involve moral turpitude. We are not permitted to go behind the record of conviction in this case which is worded in the language of the statute. As the crime described in the record of conviction in the instant case does not necessarily involve moral turpitude we are unable to make the requisite finding for deportation.
U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S.D.N.Y., 1913) affirmed 210 Fed. 860.
U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. (2d), 1931).
U.S. ex rel. Mylius v. Uhl, supra. Zaffarano v. Corsi, supra.
I therefore, vote to follow our past precedents, the Rothrock case the opinion of the Acting Commissioner, and the rules of moral turpitude which have heretofore had judicial sanction and ours as well.
Pursuant to section 90.12 of title 8, Code of Federal Regulations, the case is certified to the Attorney General for review of the Board's decision inasmuch as a dissent has been recorded.