A-1843782
Decided by Board October 18, 1951
Crime involving moral turpitude — Assault and battery with dangerous weapon — Chapter 265, section 15A of the Annotated Laws of Massachusetts — Armed Robbery — Chapter 277, section 37 and chapter 265, section 17 of Annotated Laws of Massachusetts — Attempt to escape from reformatory — Chapter 268, section 16 of Annotated Laws of Massachusetts — "Malum prohibitium."
(1) Assault and battery with a dangerous weapon in violation of the above Massachusetts statute involves moral turpitude not only in view of the definition of "dangerous weapon" by the Massachusetts courts but also on the basis of the conviction for an offense involving evil intent as shown by the use of the dangerous weapon involved. (See 2 IN Dec, p. XIII, IV.)
(2) Armed robbery in violation of the above Massachusetts statute involves moral turpitude.
(3) Attempt to escape from reformatory in violation of the above Massachusetts statute is "malum prohibitum"; it does not involve moral turpitude, it being noted that "escape" is not defined by statute and the wording of the statute does not require a specific criminal intent. (See 2 IN Dec. 873.)
CHARGES:
Warrant: Act of 1917 — Sentenced more than once, to wit: Assault and battery by means of dangerous weapon; attempt to escape from reformatory; armed robbery.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Acting Assistant Commissioner dated April 13, 1951, directing respondent's deportation.
Respondent, a 38-year-old native and citizen of Canada of the Scotch race, last entered the United States at Vanceboro, Maine, on September 28, 1928. At that time, he was admitted for permanent residence. Respondent married a United States citizen on June 15, 1944, from whom he was divorced in September 1945. They have a young child about 6 years old.
A warrant of arrest in deportation was issued on January 25, 1949, charging that respondent was deportable as an alien convicted and imprisoned more than once for crimes involving moral turpitude (sec. 19 (a), act of 1917). Respondent contends that the crimes, discussed below, do not serve to sustain the charge.
On May 5, 1938, respondent was convicted in Superior Court, Middlesex County, Mass., on a plea of guilty of attempting to escape from the Massachusetts reformatory in Concord. Respondent was sentenced to Massachusetts State prison for 8 to 10 years at hard labor with 1 day of solitary confinement, the sentence to take effect notwithstanding the sentence he was then serving in the Massachusetts reformatory.
The offense was committed on April 23, 1938. According to the indictment, respondent, in furtherance of an attempt to escape on the part of three prisoners, "did assault and overpower a guard stationed (in the hospital building) and did file and cut a steel bar on a window, but was intercepted and prevented in the execution of the attempted offense."
The offense in question is defined in chapter 268, section 16 of the Annotated Laws of Massachusetts in the following manner:
Penalty for Escapes or Attempted Escapes from Penal Institutions. — A prisoner who escapes or attempts to escape from any penal institution, or from land appurtenant thereto, or from the custody of any officer thereof or while being conveyed to or from any such institution, may be pursued and recaptured and shall be punished by imprisonment in the institution to which he was originally sentenced or committed, for a term not exceeding five years. If the prisoner has escaped or attempted to escape from the institution to which he is sentenced and the expense of committing him shall be paid by the prison camp and hospital. In imposing sentence under this section the court shall observe the provisions of law regarding sentences and commitments to the various penal institutions (1805, 113, 119, 10; 1925, 53).
The statute before us serves to direct the duly constituted State authorities in the pursuit and recapture of prisoners who leave or attempt to leave confinement without permission. "Escape" is not defined in terms of intent and, by wording of the statute, a specific criminal intent is not required.
Since the crime defined in chapter 268, section 16, is merely malum in prohibitum, and because moral turpitude inheres in the evil intent, it is concluded that this offense does not involve moral turpitude, ( Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249 (1910)).
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D., N.Y., 1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C. A 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D., Pa., 1930).
On May 5, 1938, respondent was convicted on a plea of guilty in Superior Court, Middlesex County, Mass., of assault and battery with a dangerous weapon. This offense was committed on April 23, 1938, and occurred during the escape attempt discussed above.
The crime of assault with a dangerous weapon in Massachusetts is defined in chapter 265, section 15A of the Annotated Laws of Massachusetts as follows:
Assault and Battery with Dangerous Weapon. — Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than 10 years or by a fine of not more than $1,000 or imprisonment in jail for not more than 2½ years (1927, 187, 1).
Simple assault has generally been held as not necessarily involving moral turpitude, for it may be committed without the evil intent or depraved motive associated with moral turpitude. For similar reasons, aggravated assault where the use of a deadly or dangerous weapon is not an element is not regarded as involving moral turpitude, ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933); U.S. ex rel. Griffe 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)). Conversely, assaults with intent to murder ( Clark v. Orabona, 59 F. (2d) 187 (E.D., Pa., 1930)), to kill ( U.S. ex rel. Rizzio v. Kenney, 50 F. (2d) 418 (N.D. Conn., 1931)) have been held to indicate the base motive which is requisite for moral turpitude.
In such cases as Matter of R----, 56053/152 (B.I.A., October 13, 1942) (unreported); Matter of E----, 1 IN Dec. 505 (56065/307, B.I.A., 1943); and Matter of M----, 56156/116 (B.I.A., May 13, 1944) (unreported), the crime in question held not to involve moral turpitude, because the offense was a mere assault not accompanied by aggravated circumstances.
In order for a statutory crime to involve moral turpitude, a specific intent must accompany the act, in addition to the fact that the act, made criminal, must be intrinsically wrong, ( Weedin v. Yamada, 4 F. (2d) 455 (C.C.A. 9, 1925); Tillinghast v. Edmead, 31 F. (2d) 81 (C.C.A. 1, 1929); Coykendall v. Skrmetta, 22 F. (2d) 120 (C.C.A. 5, 1927)). Assault with a dangerous or deadly weapon has repeatedly been held to be a crime involving moral turpitude, ( Matter of R----, 1 IN Dec. 209 (56050/167, B.I.A. 1942); Matter of K----, A-3959971 (56138/221, B.I.A., November 12, 1943) (unreported); Matter of N----, 2 IN Dec. 201 (56170/750, now A-1779952, B.I.A., 1944); Matter of G---- R----, 2 IN Dec. 733 (A-4569802, A.G., 1947); Matter of P----, A-6386124 (A.G., September 11, 1947) ( 3 IN Dec. 5); Matter of O----, A-5912688 (B.I.A., March 29, 1948) ( 3 IN Dec. 193)).
The Massachusetts courts have defined a dangerous weapon as:
any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm; or an instrument or instrumentality which, because of the manner in which it is used, or attempted to be used, endangers life or inflicts great bodily harm; or is likely to produce death or serious bodily injury. An instrument and instrumentality most innocent appearing and harmless in and of itself may be used in such a dangerous and harmful manner that it causes serious bodily injury because of such manner of use. ( Commonwealth v. Farrell, 322 Mass. 606, 78 N.E. (2d) 697 (1948); see also Commonwealth v. Wolansky, 316 Mass. 621, 55 N.E. (2d) 902 (1944).
It would, therefore, seem that, not only in view of the above definition of a dangerous weapon, but also on the basis of the conviction in the superior court of Massachusetts, respondent was sentenced on May 5, 1938, for an offense involving an evil intent, as shown by the use of the above described dangerous weapon — a crime involving moral turpitude, ( Matter of N---- ( supra) ; Matter of Di S----, A-4223116 (November 29, 1949) (unreported).
In passing, it will be noted that the statute and conviction involved in the instant case differ greatly from those passed upon in U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933) and Matter of B----, 1 IN Dec. 52 (56018/361, A.G., 1941). In the former case, it was not shown that a weapon was in fact used; in the latter case the weapon was stated as unknown and crime was said to have occurred under circumstances of extreme provocation. In addition, it is felt that the reasoning used in several prior cases, involving a conviction for aggravated assault by inflicting bodily injury or asault with intent to commit a minor infraction and held not to be crimes involving moral turpitude, has been repudiated at least by inference in Matter of G---- R---- ( supra); Matter of A----, A-5247648 (July 8, 1947) (Int. Dec. # 83); Matter of P---- ( supra) ; Matter of O---- ( supra).
On January 10, 1946, respondent was convicted in Superior Court, Suffolk County, Mass., on a plea of guilty of armed robbery (five cases, committed on June 26, 1945, June 30, 1945, and July 24, 1945). He was sentenced to serve concurrent sentences for each offense of 10 to 11 years; he served slightly longer than 5 years' time.
The crime of armed robbery is defined in chapter 277, section 37 and chapter 265, section 17 of the Annotated Laws of Massachusetts as follows:
Section 37. Definition of Robbery. — The taking and carrying away of personal property of another from his person and against his will, by force and violence. or by assault and putting in fear, with intent to steal.
Section 17. Punishment of Robbery in Certain Cases. — Whoever, being armed with a dangerous weapon, assaults another and robs, steals, or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment in the state prison for life or for any term of years. (1943, 250, 1, effective Oct. 1, 1943).
In order for a statutory crime to involve moral turpitude, a specific intent must accompany the act, ( Weedin v. Yamada, 4 F. (2d) 455 (C.C.A. 9, 1925)). The common-law definition of robbery was incorporated almost literally into the above Massachusetts robbery statutes. Since a specific intent is an essential of the crime of robbery, an averment worded in the less technical terminology of "stealing" does in fact supply the specific intent to commit larceny necessary. Cf. Matter of M----, A-3035192 (October 7, 1949) (unreported).
Acts which were always malum in se, such as larceny or "stealing," naturally fall within the definition of offenses involving moral turpitude, ( Bartos v. U.S. Dist. Ct., 19 F. (2d) 722 (C.C.A. 8, 1927); Ng Sui King v. United States, 46 F. (2d) 755 (C.C.A. 7, 1931)). Hence, since, moral turpitude inheres in such criminal intent, as is required by the words of the statute, we conclude that a conviction for armed robbery under chapter 265, section 19 was a conviction for a crime involving moral turpitude. (See footnote 1.)
Therefore, in view of the interpretation placed on section 19 (a) of the act of 1917 by the United States Supreme Court in Fong Haw Ten v. Phelan, 333 U.S. 6 (1948), it is concluded that respondent is deportable as an alien who has been sentenced more than once for crimes involving moral turpitude.
"* * * except as hereinafter provided, any alien who, after May 1, 1917 * * * is sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * *."
The appeal is accordingly dismissed.
Order: It is ordered that the appeal be dismissed.