56130/391
Decided by the Board December 13, 1943.
Crime involving moral turpitude — Perjury (Michigan).
Perjury in violation of sections 422 and 423, Michigan Penal Code, is a crime involving moral turpitude although the statute does not specifically prescribe that the false swearing be material, since the statute has been judicially interpreted to include the common-law requirement of materiality.
CHARGES:
Warrant: Act of 1917 — Convicted of and admits crime involving moral turpitude prior to entry — perjury.
Lodged: Act of 1924 — Immigrant without immigration visa.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charges above specified. The Central Office concurs.
DISCUSSION: The respondent is a native and citizen of Canada, 32 years of age, married. He last entered the United States in May 1938 at Detroit, Mich., for the purpose of resuming his residence, and he did not have an immigration visa. He testified that he has resided in the United States continuously since January 1911. However, there is no record of his admission to the United States for permanent residence.
The respondent testified that in 1930 he was convicted in Michigan of the crime of perjury. The Service has been unable to obtain copies of the indictment and judgment, but there has been introduced a court order dated October 14, 1931, committing the respondent to custody to answer a warrant for perjury. A communication from the police authorities states that the respondent was convicted of perjury on October 26, 1931. In connection with the foregoing the respondent admits the commission of the crime of perjury. Exhibit 2 reflects that the respondent testified falsely in a judicial proceeding. Section 422 of the Michigan Penal Code (25 Mich. Stat. Ann. 28.664) provides that "any person who, being lawfully required to depose the truth in any proceeding in a court of justice, shall commit perjury, shall be guilty of a felony." Section 423 (25 Mich. Stat. Ann. 28.665) defines perjury as follows:
Any person authorized by any statute of this State to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury.
Perjury, as the offense was defined at common law, is the willful assertion as to a matter of fact, opinion, belief or knowledge made by a witness in a judicial proceeding upon oath, such assertion being known to the witness to be false and being intended by him to mislead the court, jury, or person holding the proceeding (2 Wharton's Criminal Law (1932) p. 1780; People v. Collier, 1 Mich. 137 (1848); Beecher v. Anderson, 45 Mich. 543 (1881)). The assignment of perjury must be in a matter that is material to the issue ( Beecher v. Anderson, supra). When the false swearing goes to a point the existence or nonexistence of which cannot affect the question in dispute, it does not tend to prevent the due administration of justice and, therefore, is not perjury (Wharton, op. cit., p. 1809; Reg. v. Worley, 3 Cox, C.C. (Eng.) 105). It is well settled that the offense of perjury as defined by the common law and by statutes following the common law is a crime involving moral turpitude ( Kaneda v. United States, 278 F. 694, Masaichi Ono v. Carr, 56 F. 2d 772).
WHARTON, FRANCIS. CRIMINAL LAW. 12 Ed., 1932, 3 vols. Rochester, N.Y.
It is true that the Michigan statute in terms does not mention materiality. However, it has been held by the Michigan courts that the statute does not change the common-law requirement. In People v. Collier, supra, the court said (p. 141):
The Attorney General refers to the Revised Statute of 1838, page 639, and, as I understand him, insists that it changes the rule in relation to the materiality of the testimony to the matter in question before a court; but the statute does not make that perjury which is not material to the issue. The statute says, if any person of whom an oath shall be required by law, shall willfully swear falsely in regard to any matter or thing, respecting which such oath is authorized or required, he shall be guilty of perjury. This statute embraces cases which before were not embraced by law, but it does not in any way change the rules regulating the mode in which indictments for perjury are to be framed. [Italics supplied.]
And in People v. Almashy, 229 Mich. 227, which was decided 76 years later, the same doctrine has been adhered to. It is clear that in Michigan materiality is a required element of the crime of perjury. It follows, therefore, that it necessarily 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 Canada;
(2) That the respondent last entered the United States in May 1938 at Detroit, Mich.;
(3) That the respondent entered for the purpose of resuming his residence in the United States;
(4) That the respondent did not have an immigration visa;
(5) That the respondent has never been admitted to the United States for permanent residence;
(6) That on October 26, 1931, the respondent was convicted in Michigan of the crime of perjury in violation of section 422 and 423 of the Michigan Penal Code;
(7) That the respondent has admitted the commission of the foregoing offenses.
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 at the time of entry he was an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by the said act or regulations made thereunder;
(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been convicted of and admits the commission of a crime involving moral turpitude prior to entry, to wit: perjury.
(3) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Canada at Government expense.
OTHER FACTORS: The Central Office recommends that relief be extended to the respondent under the seventh proviso to section 3 of the Immigration Act of 1917 with respect to the criminal ground of deportation in accordance with the case of In re B---- (V-292729) [ see page 204, this volume]. The respondent has filed a formal application for voluntary departure. He has resided in the United States for more than 32 years — practically his entire life. His parents reside in this country, and he is married to a citizen of the United States. There is no issue of the marriage. The respondent's wife is unemployed and is dependent on him for support. He is employed by the Ford Motor Co. Willow Run Bomber Plant as a glazier and earns $1.30 per hour. His assets are valued at $3,492, consisting of $692 in cash, $1,500 in real estate, and the balance in miscellaneous personal property.
On account of his conviction in 1931 the respondent was sentenced to imprisonment for a term of 3 to 15 years of which he served 27 months. He was released on parole and finally discharged on January 1, 1935. The parole officers state that he is a person worthy of consideration. The police authorities of the city in which the respondent resides state that he has no other criminal record. He testified that he was arrested in 1930 on a charge of larceny, but that the case was dismissed. We think that in the event the respondent should apply for admission to the United States at some future time in possession of proper documents, his admission under the seventh proviso to section 3 would be justified with respect to the crime of perjury. An appropriate order will be entered.
ORDER: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice, within 90 days after notification of decision, conditioned upon arrangements being made with the local immigration office for verification of departure.
It is further ordered, That if the alien applies for admission to the United States within 60 days after departure, he be admitted under the seventh proviso to section 3 of the Immigration Act of 1917, notwithstanding that he is a person who has been convicted of and admits the commission of a crime involving moral turpitude, to wit: perjury.