A-5963007.
Decided by Board June 18, 1946.
Crime involving moral turpitude — Injuring war material in war time. — 50 U.S.C. 102.
Destroying or injuring war material in time of war in violation of 50 United States Code 102 is a crime involving moral turpitude within the meaning of Section 19 of the Immigration Act of 1917.
CHARGES:
Warrant: Act of May 10, 1920 — Convicted subsequent to August 1, 1914, of willful injury or destruction of war material or of war premises or utilities used in connection with war material.
Lodged: Act of 1917 — Crime within 5 years — Willful injury or destruction of war material or of war premises or utilities used in connection with war material; and aggravated assault and battery, assault and battery with intent to ravish, attempted rape, and attempted incestuous adultery on a female child under 16 years of age.
Act of 1917 — Sentenced more than once after entry for erimes — Willful injury or destruction of war material or of premises or utilities used in connection with war material; and aggravated assault and battery, assault and battery with intent to ravish, attempted rape, and attempted incestuous adultery on a female child under 16 years of age.
BEFORE THE BOARD
Discussion: Warrant of arrest in this case was issued September 27, 1943. After hearings under the warrant the Presiding Inspector recommended that the alien be deported. The Commissioner concurs in this recommendation. The respondent is a native and citizen of Hungary, 38 years of age, married, who entered the United States December 2, 1907, at the port of New York for permanent residence. His last entry was December 6, 1941, at Charleston, S.C., as a seaman.
On March 14, 1942, in the United States District Court for the Northern District of California, the respondent was convicted upon an indictment charging that on or about February 9, 1942, at Encinal Terminal, Alameda, Calif., he did, "the United States being then at war, then and there with reason to believe that his act might interfere with and obstruct the United States in preparing for and carrying on the war, willfully, unlawfully and feloniously attempt to and did injure a certain war utility, to wit, the said S.S. Calmar by sawing the steering rod of said steamship with a hacksaw". He was sentenced to 3 years' imprisonment in the Federal Penitentiary at McNeil Island, Wash., and served part of his sentence.
Section 102, title 50, U.S.C., the statute under which the respondent was convicted, reads:
Destroying or injuring war material in time of war. When the United States is at war, whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, or whoever, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, shall willfully injure or destroy, or shall attempt to so injure or destroy, any war material, war premises, or war utilities, as herein defined, shall, upon conviction thereof, be fined not more than $10,000 or imprisoned not more than thirty years, or both.
Apparently, the indictment was framed under the second and third provisions of section 102 commencing with the words "whoever, with reason to believe that his act may injure, interfere with or obstruct the United States * * *" While these two latter provisions do not require a specific intent, everyone is presumed to intend the natural and probable consequences of his acts. The defendant's intent may be inferred from the fact that he willfully and with reason to believe that his act might interfere with and obstruct the United States in preparing for and carrying on the war did saw through the steering rod of this ship.
The act of which the respondent was convicted bears a close resemblance to the crime of malicious mischief, which involves moral turpitude, Matter of G----, 56127/617 (June 29, 1943). The wrongful act in the latter offense is the damage to private property. The S.S. Calmar was a war utility. Whether it was privately owned and Government operated or Government owned we do not know. But, having reason to believe his act in sawing the steering rod of this vessel would interfere with and obstruct the Government in its preparation for and carrying on of the war his duty to his employer and his fellow crew members required him to stay his hand. To proceed under such circumstances was an act contrary to the accepted and customary duties which a man owes to his fellow man and to society in general. Therefore, we hold this crime to be one involving moral turpitude.
The respondent was convicted January 15, 1945, upon an indictment charging him with assault and battery, aggravated assault and battery, assault and battery with intent to ravish, attempted rape, and attempted incestuous adultery committed December 25, 1941. His victim was his stepdaughter, a child under 16 years of age. This is a crime involving moral turpitude ( Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. Ill., 1931). He was sentenced for this offense to imprisonment for not less than 6 months nor more than 5 years in the Philadelphia County Prison. He served part of his sentence.
The Acting Commissioner is of the opinion that as the alien has been found deportable on the warrant charge (violation of the act of May 10, 1920) the violation of title 50, U.S.C., should not be used as a foundation for the lodged charges. It is true that proof of one crime involving moral turpitude is all that is required to sustain the charge that the alien has been sentenced within 5 years after entry for such an offense. For this reason evidence as to his sentence for injury of war material or evidence as to his sentence for assault with intent to ravish would have been sufficient. Proof as to more than one of these crimes may appear superfluous but we believe it is not error to find him deportable on the ground that he has been sentenced for two crimes within five years after entry instead of one. With regard to the second charge lodged at the hearing, we cannot agree that a proper charge would be abandoned because the alien has been found deportable on other grounds. This charge and the warrant charge have their origin in different immigration acts. The second lodged charge must be supported by evidence of two separate crimes of which the crime set out in the warrant is but one. Therefore we have concluded that both criminal charges lodged at the hearing should be sustained. Upon the record in this case a finding that the alien is an undesirable resident of the United States is justified.
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 Hungary;
(2) That the respondent last entered the United States December 6, 1941, at Charleston, S.C.;
(3) That the respondent was convicted March 14, 1942, upon an indictment charging that he did attempt to and did injure a certain war utility, to wit: The S.S. Calmar, by sawing the steering rod of the said steamship with a hacksaw;
(4) That the respondent was sentenced January 15, 1942, to imprisonment of not less than 6 months nor more than 5 years following his conviction for assault and battery, aggraved assault and battery, assault and battery with intent to ravish, attempted rape, and attempted incestuous adultery committed December 25, 1941;
(5) That the respondent is an undesirable resident of the United States.Conclusions of Law: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under the act approved May 10, 1920, and section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been found to be a member of the undesirable class of alien residents enumerated in section 1 of the said act of May 10, 1920, being an alien who since August 1, 1914, has been convicted of violating an act entitled: "An act to punish the willful injury or destruction of war material or of war premises or utilities used in connection with war material, and for other purposes," approved April 20, 1918;
(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that on or after May 1, 1917, he has been sentenced to imprisonment for a term of more than 1 year because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Assault and battery with intent to ravish, attempted rape and attempted incestuous adultery on a female child under 16 years of age; and, violation of section 102, title 50, U.S.C. (impairing war material);
(3) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he had 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: Assault and battery with intent to ravish attempted rape, and attempted incestuous adultery on a female child under 16 years of age and violation of section 102 of title 50 of the U.S.C. in that on February 9, 1942, at Encinal Terminal, City of Alameda, Calif., he did, the United States being then at war, attempt to and did injure a certain war utility, to wit: The S.S. Calmar, by sawing the steering rod of said steamship with a hacksaw;
(4) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Hungary at Government expense.Other Factors: The respondent has lived in the United States for many years. His wife and children are citizens by birth. At the time of the hearing his children, except for the youngest, were in charitable institutions in Pennsylvania. His wife and youngest child were supported by State funds. There is nothing in his record which would justify any action but deportation. He may be able to arrange for reshipment under the warrant of deportation.
Order: It is ordered that the alien be deported to Hungary at Government expense on the charges stated in the warrant of arrest and lodged at the hearing.