A-7274029
Decided by Board March 10, 1950
Crime involving moral turpitude — Bodily injury in violation of section 223 (a) of the German Criminal Code (1948).
Bodily injury in 1948 in violation of section 223 (a) of the German Criminal Code by assault with a knife (as in this case) is not equivalent to assault with a dangerous weapon in Anglo-American law (malice is not a characteristic of the crime), but is in fact simple assault and hence does not involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission and was convicted of a crime, to wit: Assault with a weapon (knife).
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated October 6, 1949, directing that the excluding decision of the board of special inquiry be affirmed. Appellant, a 26-year-old displaced person who is a native and citizen of Lithuania, seeks admission for permanent residence. Appellant is single and is destined to his cousin in Chicago, who has been living in the United States since about 1933.
Appellant was arraigned before the United States Military Government Court (11th Judicial District) at Kitzingen, Germany, for causing bodily harm to a German citizen by stabbing him with a knife; he pleaded not guilty to this charge of fighting with a German, but was found guilty and sentenced to 10 months in prison. He served 4 months of his sentence, the remainder being suspended for good behavior. During the hearing, appellant was asked to comment upon this record of conviction. He testified that he was going home alone late on the night of June 28, 1948, from a dance and was attacked by three Germans. Since he was alone and in a strange country, he had no choice but to defend himself; so he used his pocketknife with a blade approximately 3 inches long as a defense. Appellant stated that the reason he was thus attacked was that during the evening he had danced with a girl whom one of the Germans liked. (This altercation took place at Selingerstadt, Germany. It will be noted that since appellant was a displaced person, his position was at all times a precarious one for he was regarded by the Germans as an intruder in their midst.)
Pertinent sections of the German Criminal Code provide as follows:
Bodily Injury. Light Bodily Injury. — Leichte Koerperverletzung.
Section 223. — Whoever intentionally illtreats (misshandelt) the body of another or injuries the health of another shall be punished for bodily injury by imprisonment not to exceed three years or by fine.
The use of the German equivalent of "intentionally" is employed here merely to differentiate this offense from the one defined in sec. 230 — Bodily Injury Resulting from Negligence.
If the act is committed against the relative in an ascending line imprisonment for not less than one month shall be imposed.
Dangerous Bodily Injury. — Gefaehrliche KoerperverletzungSection 223 (a).
If bodily injury is committed by means of a weapon, and in particular a knife or other dangerous instrument or by means of a treacherous surprise (hinterlistringr ueberfall) or by several persons acting together (gemeinschaftlich) or by ill treatment dangerous to life, the punishment shall be imprisonment for not less than two months.
(Translation supplied by the District Attorney of the United States Military Government Courts for Germany, First Judicial District.)
Section 223 defines the offense of light bodily injury as an act in which the least amount of bodily injury occurs. The sections of the Code progress from this minimum through the more aggravated forms of bodily injury; section 224 deals with serious bodily injury, while section 225 states that a specific intent to inflict serious injuries is necessary for conviction under section 224. Section 223 (a) is based on the definition of the offense in section 223 and merely provides for a minimum punishment of 2 months within the framework of the maximum possible sentence of 3 years, which is set out in section 223 proper.
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. 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. Johnston, 12 F. (2d) 465 (D. Mass. 1926)). Conversely, assaults with intent to murder ( Clark v. Orabona, 59 F. (2d) 204 (E.D. Pa., 1930)), to kill ( U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204, E.D. Pa., 1930), and to rob ( U.S. ex rel. Rizzio v. Kenney, 50 F. (2d) 418 (N.D. Conn., 1931)), have been held to indicate the depraved motive which is requisite for moral turpitude. In order for 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)). Such is not the case in the German statute before us, for the offense defined in section 223 (a) is merely mala prohibita and not inherently base.
The crime involved in the instant case is not equivalent to assault with a dangerous weapon in Anglo-American law. Malice is not a characteristic of the crime since one may be convicted even though his acts were the result of innocent motivations. For example: The accidental hitting of another in the course of ordinary activity, by chance or in fun; the inadvertent striking by one who is unwittingly caught alone in an affray; the instinctive striking of another is self-protection, when the victim of a surprise attack. The latter happening describes the situation before us. Therefore, we conclude that the crime involved is in fact simple assault and hence does not involve moral turpitude ( Matter of M---- S----, A-6450220 (April 16, 1947); Matter of E----, 56065/307 (July 28, 1943)). For this reason, the ground for appellant's exclusion is not sustained.
See also: Matter of O----, A-5912688 (March 29, 1948) ( 3 IN Dec. 193); Matter of G---- R----, A-4569802 (Atty. Gen. May 29, 1947) ( 2 IN Dec. 733).
Order: It is hereby ordered, That the alien be admitted to the United States for permanent residence.