A-4915916
Decided by Board August 27, 1948 Decided by Board February 15, 1949
"Crime" involving moral turpitude — Contributing to delinquency of minor — Violation of subdivision 11 of section 21 of the Juvenile Court Law of California — Age of minor as a defense.
The offense of contributing to the delinquency of a minor in 1921 in violation of subdivision 11 of section 21 of the Juvenile Court Law of California (as reenacted under section 702 of the California Welfare and Institutions Code) involves moral turpitude where the conviction record shows the specific act of such contribution to be that of sexual intercourse; and the age of the minor is no defense.
CHARGES:
Warrant: Act of 1917 — Found assisting a prostitute.
Act of 1917 — Sentenced more than once for a year or more for commission of crimes involving moral turpitude; (1) contributing to delinquency of minor and (2) pandering.
BEFORE THE BOARD
(August 27, 1948)
Discussion: The record establishes that the alien in this case was ordered deported to Italy on March 16, 1939, on the ground that subsequent to May 1, 1917, he had been sentenced to imprisonment more than once for a term of 1 year or more for the commission, subsequent to entry, of a crime involving moral turpitude, to wit, pandering and contributing to the delinquency of a minor. The warrant of arrest which issued in deportation proceedings contained this charge and an additional charge stemming from the 1917 Act, namely, that the alien had been found assisting a prostitute. Counsel maintains that since this latter charge was not considered, the pandering charge also falls, since the two are intricately connected. This argument is untenable, since the charges of assisting a prostitute and pandering were originally intended as separate causes for removal, and the fact that the latter charge was not considered, or more likely overlooked, does not alter the determination made that the alien is deportable on the charge that he has been sentenced more than once. The actual fact is that the charge of assisting a prostitute stemmed, in part, from the alien's activities which resulted in his conviction for pandering, but the pandering conviction, which was utilized in connection with the other criminal conviction, rested upon its own validity. In any event, to have also used an additional ground of deportation, namely, assisting a prostitute, would have been merely cumulative and, therefore, the failure or omission to use such additional ground is in nowise fatal to the charge upon which the order of deportation is predicated.
Counsel's main attack is upon the ground that that part of the deportation charge relating to the alien's conviction for contributing to the delinquency of a minor does not involve moral turpitude. If this conclusion is justified, obviously the charge upon which the order of deportation is predicated falls. In support of his position, counsel merely argues that if, as necessarily must be done, consideration is given to the fact that the subject involved in the alien's contributing to the delinquency of a minor was 19 years of age when the act of intercourse was committed, and since no force was employed, thus obviating the charge of rape against the alien, it is difficult to understand the theory of the California law regarding the delinquency of a minor. In short, he maintains that in order to determine fairly the question of moral turpitude in a case of this kind, it is necessary that the attendant circumstances be given due weight and consideration.
The record establishes that an information was filed against the alien on March 11, 1921, at San Francisco, Calif., charging the violation on February 15, 1921, of section 21 of the act of legislature of the State of California known as the Juvenile Court Law. This information averred that A---- P----:
Did wilfully and unlawfully commit an act which did then and there tend to cause and did encourage and contribute to and cause one C---- R----, who was then and there a female person under the age of 21 years, to wit: 19 years of age, to come within and remain a person within the provisions of section 1 of an act of legislature of the State of California entitled "An act to be known as the Juvenile Court Law, etc." approved June 5th, 1915, aforesaid the said A---- P---- did wilfully and unlawfully then and there have and accomplish an act of sexual intercourse with and upon the said C---- R----, who was then and there of the age of 19 years; that the said A---- P---- was not then or there the husband of the said C---- R----; all of which wilful and unlawful acts and course of conduct of A---- P---- as aforesaid did thereby then and there manifestly tend to and did encourage, cause and contribute to the said C---- R---- becoming such a person as is described in said section 1 of said Juvenile Court Law, to wit:
A person under 21 years of age who is leading or from any cause is in danger of leading an idle, dissolute, and immoral life.
Section 21 of the Juvenile Court Law of California is divided into 13 subdivisions. While a violation of some of said subdivisions would not appear to involve moral turpitude, the question narrows to whether a violation of subdivision 11, recited verbatim in the information against the alien, set forth above, in conjunction with specific acts averred in said information against the alien, involves moral turpitude.
We have previously held that a general conviction under section 21 of the California Juvenile Court Act does not necessarily involve moral turpitude unless the averments in the information or indictment can be tied to a particular subdivision which denounces an act of baseness, depravity, or vileness upon which to predicate a finding of moral turpitude ( Matter of V---- T----, 55857/963, Nov. 17, 1944; Matter of C----, 56094/542; see also Matter of P----, 56124/801, June 23, 1944; and Matter of Y----, 56131/11, Dec. 9, 1943, which involved convictions for contributing to the delinquency of minors in violation of the pertinent laws of the States of Washington and Michigan, respectively).
However, where, as in the present case, it is possible to determine that a violation of a particular subdivision under a general section, in conjunction with specific averments in the information or indictment, involves an act of baseness, a determination of whether or not such act involves moral turpitude is proper. In fact, we have held that a violation of the Juvenile Court Act of California involving subdivision 11 connotes moral turpitude ( Matter of T----, 4-500220, Mar. 15, 1946). We have also held that conviction under sections 37.090 and 37.089 of the Illinois Criminal Code for contributing to the delinquency of a girl 15 years of age involved moral turpitude. In that case the defendant was charged with sexual intercourse with said minor.
Since we do not agree with counsel's position, the motion will be denied.
Order: The motion is denied.
Discussion: This record is again before us on a motion to reconsider the outstanding order of deportation. Counsel's brief states that this motion is "based upon new evidence of fact and law."
Respondent, 59 years old, a native and citizen of Italy, entered the United States in 1907, and has resided here continuously since that time. Respondent was ordered deported on the ground that subsequent to May 1, 1917, he has been sentenced to imprisonment more than once, for a term of 1 year or more, for the commission subsequent to entry of a crime involving moral turpitude. He was convicted in 1921 on a plea of not guilty for contributing to the delinquency of a minor. A copy of the information is in the record, and it charges that respondent:
Did wilfully and unlawfully commit an act which did then and there tend to cause and did encourage and contribute to and cause one C---- R----, who was then and there a female person under the age of 21 years, to wit: 19 years of age, to come within and remain a person within the provisions of section 1 of an act of legislature of the State of California entitled "An act to be known as the Juvenile Court Law, etc." approved June 5th, 1915, in the manner following, to wit: That at the time and place last aforesaid the said A---- P---- did wilfully and unlawfully then and there have and accomplish an act of sexual intercourse with and upon the said C---- R----, who was then and there of the age of 19 years; that the said A---- P---- was not then or there the husband of the said C---- R----; all of which as aforesaid did thereby then and there manifestly tend to and did encourage, cause and contribute to the said C---- R---- becoming such a person as is described in said section 1 of said Juvenile Court Law, to wit:
A person under 21 years of age who is leading or from any cause is in danger of leading an idle, dissolute, and immoral life.
For this offense respondent was sentenced to imprisonment for 12 months and was released after serving 10 months.
Respondent was sentenced for pandering, a felony, on May 25, 1938, on a plea of guilty. He was sentenced to San Quentin Prison for a term of 1 to 10 years, of which he served approximately 5 years.
Respondent was ordered deported on March 16, 1939, by the Board of Review. He has been granted a number of extensions in order to apply to the Governor of California for pardon. He requested pardons for both crimes for which he had been sentenced. The record shows a report from the San Francisco office of the Service to the Central Office stating that "on or about January 15, 1948, the subject's attorney informally advised a member of this office that the Governor of the State of California had denied the subject's petition for a pardon."
In May 1948, respondent was sent from San Francisco to Ellis Island for deportation. In New York, counsel had respondent examined and submitted a medical certificate to the effect that he was in need of surgery. Counsel also informed the San Francisco office that he was appealing to this Board for reconsideration. Respondent was operated on later for hernia, and was granted several extensions to obtain medical attention. Again he was ordered deported on August 1, 1948. This Board denied a motion to reopen on August 27, 1948.
We are considering only one ground for deportation but we must consider two crimes in support of it. The charge is "sentenced more than once for 1 year or more for committing crimes involving moral turpitude." The two crimes are (1) contributing to the delinquency of a minor and (2) pandering. There appears to be no argument as to whether or not the crime of "pandering" involves moral turpitude.
The only issue in this case seems to be whether or not a conviction for contributing to the deliquency of a minor under the California contribution statute is a "crime involving moral turpitude." This Board held in its opinion of August 27, 1948, that it is such a crime. Counsel's argument in support of the present motion presents no new issue, except that he maintains that the statute under which the respondent was sentenced has been repealed. Since this is the burden of his argument, it is necessary for us to point out that this statute in identical form is still in the California code, though reenacted under a different heading. Undoubtedly, counsel refers to General Laws of California, volume I, 1937, page 1943, which says:
Act 3966. The Juvenile Court Law. (Gives all statute numbers, amendments, etc., years they were passed and says) * * * "repealed by Stats. 1937, p. 1181."
However, below this paragraph is a sentence which states:
Table showing disposition of repealed sections of this Act, see post, page 1947.
Page 1947 shows the repealed sections of that act to have been reenacted in the California Welfare and Institutions Code, sections numbered 550, 700, 701, etc.
Counsel complains of ambiguities in our earlier opinion. In order that there be no misunderstanding, we repeat, respondent was found by the verdict of a jury on April 12, 1921, in the Superior Court of the State of California to be "guilty of a misdemeanor, to wit: Violating section 21 Juvenile Court Law" (see copy in record of judgment and commitment county jail). That section of the juvenile court law was not finally repealed, but was reenacted under the California Welfare and Institutions Code.
Counsel states "The alien was neither charged with nor convicted of the crime of `contributing to the delinquency of a minor.'" There is no question but that the section of the code under which respondent was sentenced is California's "contribution" statute (as such laws are dubbed by the courts). Section 702 of the California Welfare and Institutions Code is entitled "Contributing to Delinquency of Minor." (This is the reenactment of the law under which respondent was convicted.) The information charged that respondent "did wilfully and unlawfully commit an act which did then and there tend to cause and did encourage, and contribute to * * * and did encourage, cause and contribute to the said C---- R---- becoming such a person as is described in said section 1 of said juvenile court law, to wit: A person under 21 years of age who is leading an idle, dissolute and immoral life." [Italics supplied.]
California Code, Welfare and Institutions Code, of the State of California, adopted May 25, 1937, published in 1944, formerly section 21, Juvenile Court Law, provides:
SECTION 702. Contributing to Delinquency of Minor.
Any person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of the subdivisions of section 700 or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 21 years to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of section 700, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding $1,000, or by imprisonment in the county jail for not more than 2 years, or by both such fine and imprisonment, or may be released on probation for a period not exceeding 5 years.
In Deering's 1947 supplement section 702 as set out above was reenacted in toto with these phrases added: At point 1 the words "or ward of the juvenile court" and at point 2 the words "to fail or refuse to conform to a lawful order of the juvenile court or."
A note in Deering's California Code says, "This section (sec. 702, Juvenile Court Law No. 21) was modified or repealed by Penal Code No. 19a, so as to limit incarceration in the county jail to 1 year in all cases of conviction for offenses prescribed by such act." This, of course, merely reduces the penalty from 2 to 1 year; it does not eliminate the provision. The cases say that statutes such as these should be construed liberally to effectuate their purpose, and will not be deemed repealed by a later statute unless such intent is clearly manifested. State v. Eisen, 99 p. 282, 53 Oreg. 297, reh. den. 100 p. 257, 530 Oreg. 297; Stone v. State, 41 N.E. 2d 609, 220 Ind. 165; In re Cooper, 15 N.E. 2d, 634, 134 Ohio St. 40 affirming 16 N.E. 2d 934, 58 Ohio App. 519.
Section 700, formerly section 1, Juvenile Court Law, referred to in section 702, provides:
The jurisdiction of the juvenile court extends to any person under the age of 21 years who comes within any of the following descriptions:
(a) Who is found begging, etc.
(b) Who has no parent or guardian, etc.
(c) Who is destitute, etc.
(d) Whose home is an unfit place for him, etc.
(e) Who is found wandering, etc.
(f) Who is a vagrant or who frequents the company of criminals, vagrants or prostitutes, or persons so reputed; or who is in any house of prostitution or assignation.
(g) Who habitually visits * * * a public billiard room or public poolroom or a saloon, etc.
(h) Who habitually uses intoxicating liquors or who habitually smokes cigarettes or uses cocaine, morphine, etc.
(i) Who * * * habitually refuses to obey the reasonable and proper orders or directions of his parent, guardian, etc.
(j) Who is a habitual truant, etc.
(k) Who is leading or from any cause is in danger of leading an idle, dissolute, lewd, or immoral life.
(l) Who is insane, feeble-minded, etc.
(m) Who violates any law of this State or any ordinance of any town, city, or county of this State defining crime.
(n) Who is afflicted with syphilis, gonorrhea, or chancroid and is in need of medical, custodial care, or both.
We considered this same section of the California statutes in Matter of J---- T----, 4500220 (Mar. 15, 1946). In that case the information charged that the respondent in California accomplished an act of sexual intercourse with a female child under the age of 14 years, not his wife, which caused and manifestly tended to cause and encourage such female to come within the provisions of section 11 of this statute, to wit: To become and remain a person who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd, or immoral life. This Board held: "A review of the statute in question shows it is broad in scope and includes offenses which would not involve moral turpitude * * *. Since subdivision 11 is written in the disjunctive, it appears that the acts described therein are separable. We believe that the act committed by the respondent in engaging in sexual relations with a minor tends to encourage such minor to an idle, dissolute, lewd or immoral life, and that the offense committed by the respondent does involve moral turpitude."
Counsel attempts to distinguish this case from the T---- case on the ground that the "minor" in the present case was 19 years old and the "child" in the T---- case was under the age of 14 years. It is well established that when we must decide whether a violation of such a statute as this is a crime involving moral turpitude and the statute is divisible or separable and so drawn as to include within its definition crimes which do and some which do not involve moral turpitude, the record of conviction, i.e., the information (complaint or indictment), plea, verdict and sentence, may be examined to ascertain therefrom whether the requisite moral obloquy is present. U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370 (D.C.N.D.N.Y., 1932); U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933); Guarino v. Uhl, 107 F. (2d) 399 (C.C.A. 2d, 1939). It is equally clear that the law must be uniformly administered. In U.S. ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y., 1913) the court said:
In determining whether aliens are entitled to admission, the immigration authorities act in an administrative and not a judicial capacity. They must follow definite standards and apply general rules. Consequently, in classifying offenses I think that they must designate as crimes involving moral turpitude those which in their inherent nature include it. Their function is not, as it seems to me, to go behind judgments of conviction and determine with respect to the acts disclosed by the testimony the questions of purpose, motive and knowledge which are often determinative of the moral character of acts. Besides, the testimony is seldom available and to consider it in one case and not in another is to depart from uniformity of treatment. In my opinion when it has been shown that an immigrant has been convicted of a crime, the only duty of the administrative officials is to determine whether that crime should be classified as one involving moral turpitude, according to its nature and not according to the particular facts and circumstances accompanying a commission of it. I do not think the immigration law intends that where two aliens are shown to have been convicted of the same kind of crime, the authorities should inquire into the evidence upon which they were convicted and admit the one and exclude the other. It is true that if they do not take such course some aliens who have been convicted of high crimes may be excluded although their particular acts evidence no immorality and that some who have been convicted of slight offenses may be admitted although the facts surrounding their commission may be such as to indicate moral obliquity. But such results always follow the use of fixed standards and such standards are, in my opinion, necessary for the efficient administration of the immigration laws.
On appeal the order was affirmed and the court said ( United States ex rel. Mylius v. Uhl, 210 Fed. 860 (C.C.A. 2d, 1914)):
It would be manifestly unjust so to construe the statute as to exclude one person and admit another where both were convicted of criminal libel because, in the opinion of the immigration officials, the testimony in the former case showed a more aggravated offence than in the latter.
Counsel's case, then, is that the minor in the "contribution" case having been 19 years old, almost 20, and the element of force having been completely absent, and the California statute having been changed, this is not a conviction of a crime involving moral turpitude. We have seen that the statute was not changed. As for the other arguments, we find that in no case in statutory rape or carnal knowledge statutes does a state provide for the protection of young females over 18. It is important to note, however, that respondent was not convicted for statutory rape or carnal knowledge. He was convicted of "contribution"-a crime for which age or previous ill-repute is of no defense, according to California courts. The "contribution" cases are most rigid on these points. A recent California case, People v. Lew, 78 C.A. 2d 175, 177 P. 2d 60 (1947), held that the fact that the prosecutrix may have been a delinquent, leading an idle, dissolute, and immoral life, is no defense to a prosecution for contributing to the delinquency of a minor, since the statute punishes acts which cause or tend to cause a minor not only to become but to remain a delinquent.
The prosecutrix in the Lew case was 16 years of age. In many of these cases it is not possible to ascertain the ages of the girls, the court merely stating that "prosecutrix was under the age of" 21, 18, 17, or whatever the statutory limit in that State was. There are California cases in which the prosecutrix was 18, 19, or 20 but an acquittal or reversal was obtained because of inadequate pleading or improper charging of the jury. The conviction never fell because of the age of the girl.
It is clear, then, that we cannot distinguish the present case from other similar cases merely on the basis of the age of the "minor" involved. The State of California has decided that young women up to 21 years of age need the protection of the law; it is not for this Board to say, as counsel asks us to say, that this is a ridiculous and unreasonable law. We are not here to legislate. Having found that an act of sexual intercourse with a female who is a minor under this act tends to encourage that minor to an idle and immoral life, it is not for us to say that the California law is wrong in providing that a female of 19 is a minor as much as a female of 14.
To avoid ambiguity we recapitulate: Respondent's conviction in 1921 for contributing to the delinquency of a minor was a conviction of a crime involving moral turpitude.
On May 25, 1938, respondent was sentenced for pandering, a felony, and sentenced to 1 to 10 years at San Quentin Prison. There is no evidence in the record as to the circumstances surrounding the event. The information charges respondent with two crimes: (1) Pandering; that is, that he did "wilfully, unlawfully, and feloniously procure for one P---- Z----, a female person, a place as inmate of a house of prostitution, and (2) Pimping, that is, that he, knowing her to be a prostitute, did live and derive support or maintenance in whole or in part from the earnings of the prostitution of the prostitute. Respondent plead guilty to the first count and the second count was dropped. Each count carried 1 to 10 years in prison under California statute, California Penal Code, part 3, page 748.
There has been some discussion, back and forth, about a charge in the original warrant of arrest, dated December 13, 1938, that respondent "has been found assisting a prostitute." As we said in our opinion of August 27, 1938, it is unnecessary to consider or discuss this additional ground for deportation. We have found respondent deportable on the rest of his record.
If there is any ambiguity in that opinion it arises from the mistake in the second paragraph, line 13, which reads, "The fact that the latter charge was not considered, * * *." Quite obviously, the sense of the paragraph demands that the word be "former" rather than "latter," making the sentence read "The fact that the former charge was not considered, or more likely overlooked. * * *"
The rest of counsel's brief and argument contains nothing not already considered and decided by this Board.
We hold that respondent is deportable for the reason that he has been sentenced to imprisonment more than once for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude: (1) Contributing to the delinquency of a minor and (2) pandering.
Order: The motion is denied.