A-6311622.
Decided by Central Office July 8, 1946. Decided by Board November 25, 1946.
Crime involving moral turpitude — Unlawful destruction of railway telegraph property — Violation of section 517 (c) of the Criminal Code of Canada — "Joyriding" — Violation of section 285 (c) of the Criminal Code of Canada — Stealing from the person — Violation of section 379 of the Criminal Code of Canada — Breaking and entering — Violation of section 461 of the Criminal Code of Canada.
1. The unlawful destruction of railway telegraph property in violation of section 517 (c) of the Criminal Code of Canada does not involve moral turpitude.
2. "Joy-riding" in violation of section 285 (3) of the Criminal Code of Canada does not involve moral turpitude.
3. Stealing from the person in violation of section 379 of the Criminal Code of Canada does involve moral turpitude, the intent to deprive the rightful owner of his property permanently being indicated.
4. Breaking and entering with intent to commit an indictable offense in violalation of section 461 of the Criminal Code of Canada is not shown to involve moral turpitude where the offense intended is not shown to involve moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime; unlawful destruction of railway telegraph property (sec. 517 (c), Criminal Code of Canada); Stealing from the person (sec. 379, Criminal Code of Canada).
Act of 1917 — Convicted of crime; unlawful destruction of railway telegraph property (sec. 517 (c), Criminal Code of Canada); stealing from the person (sec. 379, Criminal Code of Canada).
BEFORE THE CENTRAL OFFICE
(July 8, 1946)
Discussion: On March 27, 1946, the appellant applied for temporary admission into the United States and was referred to a Board of Special Inquiry and at a reopened hearing of the Board in 1946, he was ordered excluded on criminal grounds. He has appealed from this decision.
The appellant is almost 21 years old having been born in Canada on July 4, 1925. He is a native and citizen of Canada and his parents are likewise. He submitted a birth certificate in substantiation of the date and place of his birth.
On March 3, 1939, on his plea of guilty he was convicted at Fort Frances in the District of Rainy River, Ontario, Canada, for breaking and entering a bakery with intent to commit an indictable offense therein, contrary to section 461 of the Canadian Criminal Code. Since the record does not show what indictable offense he intended to commit when he broke and entered this bakery, it must be concluded that the record does not establish that the offense for which he was convicted involved moral turpitude ( Matter of D----, 56130/68, March 13, 1943, Matter of B----, 56156/586, January 12, 1944).
In addition the respondent was under 16 years of age at the time he committed this offense.
On July 2, 1941, the appellant was convicted at Fort Frances in the District of Rainy River, Ontario, Canada for having on or about June 26, 1941, unlawfully taken an automobile from a street, road, highway with intent to operate the same without the consent of the owner contrary to section 285 (3) of the Criminal Code of Canada. It has been held that an offense in violation of section 285 (3) of the Criminal Code of Canada constitutes what is known in this country as "joy riding" and is deemed to be an offense which does not involve moral turpitude. ( Matter of C----, 56172/434, October 14, 1944). In addition it is noted that the appellant was under 16 at the time this offense was committed.
On July 23, 1941, upon his plea of guilty the appellant was convicted in Rainy River District, Ontario, Canada for having on or about July 23, 1941, wilfully broken a number of insulators on the Canadian National Railways Telegraph System appliances upon the said Railway, and did therefore without authority interfere with the same, contrary to the provisions of section 517 (c) of the Criminal Code of Canada. He was sentenced to 3 months hard labor. Although this offense has some of the aspects of what is known in this country as malicious mischief which has been held in some cases to involve and in other cases not to involve moral turpitude, the information shows that insulators were broken wilfully. It is of course noted that he was found guilty of violation of section 517 (c) which relates to interfering without authority with the points, signals or other appliances upon any railway, which is considered to have been done in a manner likely to cause danger to property although without endangering life or person. It is concluded in this case that the offense for which he was convicted on July 23, 1941 is one which does involve moral turpitude since it indicates a disconcern with the safety and security of others, although no life or person was actually in danger thereby. Such disregard of safety indicates a degree of depravity from which a finding of evil intent is justified. There is no evidence to indicate that the age has been raised to 18 by Order-in — Council in the Province of Ontario, Canada so it must be concluded that a child under the Juvenile Delinquent Act of Canada is still 16 in the Province of Canada. Since the above offense was committed on or about July 23, 1941, it is apparent that the respondent was just over the age of 16 when this offense was committed. Accordingly, the theory enunciated in the Matter of O'N----, approved by the Attorney General on June 13, 1945 is deemed not to be applicable. It is therefore concluded that the appellant is subject to exclusion because of his conviction for the above stated offense on July 23, 1941. Since he was convicted on his plea of guilty such plea of guilty is tantamount to the admission of the commission of the crime ( Blumen v. Haff, 78 F. (2d) 833 (CCA9, 1935). He is therefore subject to exclusion on the ground of the admission of the commission of such offense.
On March 6, 1942, on his plea of guilty the appellant was convicted in Rainy River District, Ontario, Canada for having on March 5, 1942, unlawfully stolen from the person of another a purse containing the sum of $4 in cash, contrary to section 379 of the Criminal Code of Canada. The nature and manner of the commission of this offense has been held to indicate that it is one involving moral turpitude even though the appellant does not admit that he intended to deprive the owner of his property permanently ( Matter of M----, 56156/413, December 3, 1943; Matter of G----, 56175/287, May 12, 1945). It is noted that the appellant was over 16 years of age when this offense was committed and the same statements made as to the inapplicability of Matter of O'N----, supra, obtains in regard to this offense. Likewise in regard to the admission of the commission of the offense, read from his plea of guilty ( Blumen v. Haff, supra). It is therefore concluded that the appellant is excludable as one who admits the commission of and was convicted for the foregoing offense.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is a native and citizen of Canada born on July 4, 1925.
(2) That the appellant has never been admitted into the United States for permanent residence.
(3) That the appellant was convicted on March 3, 1939 upon his plea of guilty for breaking and entering a bakery with intent to commit an indictable offense therein contrary to section 461 of the Criminal Code of Canada.
(4) That the appellant was convicted on July 2, 1941 for having on or about June 26, 1941 unlawfully taken an automobile from a street, road, highway with intent to operate the same without the consent of the owner contrary to section 285 (3) of the Criminal Code of Canada.
(5) That the appellant was convicted on July 23, 1941 on his plea of guilty for having on or about July 23, 1941 wilfully broken a number of insulators on the Canadian National Railways Telegraph System appliances upon the said Railway, and did therefore without authority interfere with the same, contrary to the provisions of section 517 (c) of the Criminal Code of Canada.
(6) That on March 6, 1942, the appellant was convicted on his plea of guilty for having on March 5, 1942, unlawfully stolen from the person of E---- W----, a purse containing the sum of $4 in cash, contrary to section 379 of the Criminal Code of Canada.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the act of 1917, as amended, the appellant is not subject to exclusion on the ground that he admits the commission of a crime or felony or misdemeanor involving moral turpitude prior to entry, to wit: Breaking and entering with intent to commit an indictable offense in violation of section 461 of the Criminal Code of Canada on March 3, 1939.
(2) That under section 3 of the act of 1917, as amended, the appellant is not subject to exclusion on the ground that he was convicted of a crime or felony or misdemeanor involving moral turpitude prior to entry, to wit: Breaking and entering with intent to commit an indictable offense in violation of section 461 of the Criminal Code of Canada on March 3, 1939; for having on or about June 26, 1941 unlawfully taken an automobile from the street with intent to operate the same without the consent of the owner, contrary to section 285 (3) of the Criminal Code of Canada.
(3) That under section 3 of the Immigration Act of 1917, the appellant is subject to exclusion on the ground that he admits the commission of and was convicted for a crime or felony or other misdemeanor involving moral turpitude, to wit: On or about July 23, 1941, did wilfully break a number of insulators on the Canadian National Railways Telegraph System appliances upon the said Railway and did therefore without authority interfere with the same, contrary to the provisions of section 517 (c) of the Criminal Code of Canada; that on March 5, 1942, he did unlawfully steal from the person of E---- W---- a purse containing a sum of $4 in cash, contrary to section 379 of the Criminal Code of Canada.Other Factors: The respondent testified that he was convicted for assault in Canada in Rainy River District, Ontario, Canada on May 23, 1946, for which he was fined and paid costs of $98.50. The convicting police magistrate stated in a letter dated June 7, 1946, that he believed the appellant had learned his lesson and would in the future behave as a good citizen as he had in the past. A letter dated May 22, 1946, on the stationery of the Ontario Provincial Police, Criminal Investigation Branch, Toronto, Ontario, Canada, it appears that the appellant gave valuable information which assisted in the apprehension of the four men that had tortured Mrs. V---- J---- on a hot stove on June 10, 1944 and that M---- (the appellant) was to be complimented on his assistance that he gave to law enforcement agents. Under the circumstances indicated in this case favorable action on the respondent's application does not appear warranted.
Order: It is ordered that the exclusion decision of the Board of Special Inquiry be affirmed on the following grounds:
Section 3 of the Immigration Act of 1917, the appellant admits the commission of and was convicted for a crime or felony or other misdemeanor involving moral turpitude, to wit: On or about July 23, 1941, did wilfully break a number of insulators on the Canadian National Railways Telegraph System appliances upon the said Railway and did therefore without authority interfere with the same, contrary to the provisions of section 517 (c) of the Criminal Code of Canada; that on March 5, 1942, he did unlawfully steal from the person of E---- W---- a purse containing a slum of $4 in cash, contrary to section 379 of the Criminal Code of Canada.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
We do not agree with the Acting Commissioner that the alien's violation of section 517 (c) of the Canadian Criminal Code involves moral turpitude.
This provision reads:
517. Every one is guilty of an indictable offence and liable to five years' imprisonment who, in manner likely to cause danger to valuable property, without endangering life or person, * * *
(c) interferes without authority with the points, signals or other appliances upon any railway.
The information filed against the alien reads:
J---- A---- M---- at or near Stratton, in the District of Rainy River, on or about the 23d of July 1941, did wilfully break a number of insulators on the Canadian National Railways Telegraph System appliances upon the said Railway, and did therefore without authority interfere with the same, contrary to the provisions of the Criminal Code 517 (c).
In support of his position the Acting Commissioner said:
It is concluded in this case that the offense for which he was convicted on July 23, 1941 is one which does involve moral turpitude since it indicates a disconcern with the safety and security of others, although no life or person was actually in danger thereby. Such disregard of safety indicates a degree of depravity from which a finding of evil intent is justified.
Under the terms of section 517 (c), the endangering of life or person is not an element of the offense. A person violating this statute does not necessarily, as the Acting Commissioner said, exhibit a disconcern with the safety and security of others. Again, the statute does not require that the proscribed act be accompanied by a vicious or corrupt intent. The mere doing of anything which is likely to cause danger to valuable property, regardless of the actor's intent, is punishable. We do not think that the commission of an act which is likely to cause danger to property where life or person is not in danger should be held to involve moral turpitude. The offense appears to be somewhat comparable to driving an automobile in a negligent manner. Upon consideration of all the evidence of record, the Board approves the findings of fact and conclusions of law proposed by the Commissioner except for conclusions of law 2 and 3 which are amended to read:
(2) That under section 3 of the act of February 5, 1917, the appellant is not inadmissible as having been convicted of a crime involving moral turpitude, to wit: breaking and entering in violation of section 461 of the Canadian Criminal Code; unlawfully taking an automobile in violation of section 285 (3) of the Canadian Criminal Code; damaging property in violation of section 517 (c) of the Canadian Criminal Code;
(3) That under section 3 of the act of February 5, 1917, the appellant is inadmissible in that he admits the commission and has been convicted of a crime involving moral turpitude, to wit: theft in violation of section 379 of the Canadian Criminal Code.Order: It is ordered that the excluding decision of the board of special inquiry be affirmed solely on the ground that the alien has been convicted of theft in March 1932 in violation of section 379 of the Canadian Criminal Code.