A-7802953
Decided by Board January 31, 1951 Decided by Acting Attorney General March 2, 1951
Admission of the commission of a crime involving moral turpitude prior to entry (larceny) — Adequacy thereof — Juvenile offender (Michigan).
(1) In exclusion proceedings (there being no conviction record nor a plea of guilty before a convicting court to consider), to conclude that the admission of the commission of the offense (involving moral turpitude) is adequate, the "definition" of the crime (here it was larceny) need only be substantially similar to the particular statutory definition (in this case section 28.588-section 356 of the Michigan Penal Code) of the offense and contain all the necessary elements of the crime, but need not be "identical" to the law of the jurisdiction in which the crime was committed.
(2) Since this alien attained the age of seventeen, one month before the offense in question, she was not eligible for special treatment as a juvenile or for transfer of her case to the county probate court (juvenile division) under the laws of the State of Michigan.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of crime involving moral turpitude — larceny.
BEFORE THE BOARD
(January 31, 1951)
Discussion: Appellant, an 18-year-old native and citizen of Canada sought admission to the United States at Detroit on June 12, 1950, and was excluded on the above charge. The Assistant Commissioner affirmed this conclusion on October 25, 1950, and appellant appealed.
Appellant testified that she had previously entered this country on the afternoon of February 6, 1950, to go shopping in Detroit after work. As she was leaving a Detroit department store, she was detained by a house detective, then turned over to local police for stealing a woman's suit of clothing, valued at about $15. She was released the following day, because the store declined to prosecute, and was then permitted to depart voluntarily by the Immigration Service. The record reveals that appellant entered the store wearing only a blouse and topcoat over her slip; she then donned a suit skirt in a fitting room and attempted to leave the store, wearing the skirt and carrying the coat, without paying for the suit.
The crime of larceny is defined in the Michigan Penal Code in the following way:
Section 28.588. Larceny: property subject to; value, degree of crime. Section 356. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of fifty (50) dollars, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five (5) years or by fine of not more than two thousand five hundred (2,500) dollars. If the property stolen shall be of the value of fifty (50) dollars or less, such person shall be guilty of a misdemeanor.
Section 28.592. Larceny: from dwelling house, store, factory, ship, or other building. Sec. 360. Any person who shall commit the crime of larceny by stealing in any dwelling house, office, store, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat or vessel shall be guilty of a felony. (Vol. 25, Michigan Statutes Annotated, 1938.)
Appellant's offense on that occasion was in fact larceny, for she stated that she intended to keep the suit and wear it without paying the purchase price. Appellant's act of putting on the skirt and removing the suit from one part of the store to another in her route out of the building constituted sufficient asportation to satisfy that essential element of larceny, for the slightest removal, even a "hair's breadth," satisfies the asportation requirement ( People v. Bradovich, 305 Mich. 329.)
People v. Baker, 365 Ill. 328; State v. Gazell, 30 Mo. 92; State v. Mitchener, 98 N.C. 689; Gettinger v. State, 13 Neb. 308. Cf State v. Taylor, 136 Mo. 66; Eckels v. State, 20 Ohio St. 508.
Since appellant had just passed her 17th birthday at the time she committed the act in question, it is necessary to determine whether appellant would have been treated as a juvenile offender at that age. In Michigan, juvenile jurisdiction has been exercised over children under seventeen by the juvenile division of the probate courts since 1907 (Public Acts 1907, page 42, section 2; now sections 27.3178 (598.1, 598.2, 598.3)). Section 27.3178 (598.2) states that:
Except as provided herein, the juvenile division of the probate court shall have:
(a) Exclusive original jurisdiction in proceedings concerning any child under 17 years of age.
In the instant case, respondent attained the age of seventeen 1 month before the offense in question and hence was not eligible for special treatment as a juvenile or for transfer of her case to the county probate court, juvenile division. For this reason, respondent was guilty of the offense of larceny, a crime involving moral turpitude and thus does not come within the meaning of the term "juvenile offender," as set out in Matter of O---- N----, 2 IN Dec. 319, 55813/162 (A.G. 1945), Matter of N----, A-6953557 (B.I.A., August 26, 1949); Matter of M---- M----, A-4096976 (B.I.A., November 16, 1950); 37 Op. Atty. Gen. 259 (1933).
The Michigan courts have held that this juvenile jurisdiction of the probate court over delinquent children does not repeal by implication the statutory accountability of children over fourteen for their crimes ( People v. Ross, 235 Mich. 433). This juvenile legislation rather establishes the concurrent jurisdiction of the general criminal court and the probate court, juvenile division, with the proceedings in the latter court not being "deemed to be criminal proceedings" (Secs. 27.3178 (598.1, 598.3, 598.4); People v. Tillard, 318 Mich 619.) It will be noted in this connection that the age of the child when arrested or charged in criminal proceedings, not the age at the time of commission of the offense, controls ( People v. Crandell, 270 Mich. 124; People v. Tillard ( supra); see also Cosulich, Juvenile Court Laws of the U.S. (Natl. Probation Assn. 1939, pp. 9, 16, 22, 27, 37, 40, and 135); Breckinridge and Jeter, Summary of Juvenile Court Legislation, Dept. of Labor 1920, pp. 47 and 74).
Matter of M----, 2 IN Dec. 530, 56205/971 (B.I.A., 1946).
With regard to the question of the validity of the admission of the crime elicited from respondent, it will be noted that the offense was defined as follows:
Larceny is the felonious taking the property of another without his consent and against his will with intent to convert it to the use of the taker. Do you understand the meaning of the term "larceny"?
Since Matter of J----, 2 IN Dec. 285 (56038/559, A.G. 1945) requires that "the alien must be advised in a clear manner of the essential elements of the alleged crime," we have held that the definition need only be substantially similar to the particular statutory definition of the offense and contain all the necessary elements of the crime, but need not be identical to the law of the jurisdiction in which the crime was committed ( Matter of G----, A-5990340, (B.I.A., October 12, 1949)). The above definition of larceny and that found in the Michigan statutes contain the same essential elements and, being a voluntary, explicit, and unequivocal acknowledgement of guilt, constitutes an effective admission of the crime.
U.S. ex rel. Castro v. Williams, 203 Fed. 155 (D.C., S.D.N.Y., 1913); Howes v. Tozer, 3 F (2d) 849 (C.C.A. 1, 1925); U.S. ex rel. Boraca v. Schlotfeldt, 109 F. (2d) 106 (C.C.A. 7, 1940).
Therefore, the ground of exclusion is sustained.
In view of the recentness of the crime and the lack of any real necessity for appellant's presence in the United States at this time, we will not authorize appellant's admission under the 9th proviso to section 3, act of 1917. Order: It is hereby ordered that the appeal be dismissed.
The decision and order of the majority of the Board of Immigration Appeals dated January 31, 1951, are hereby approved.
Discussion: This matter arises by reason of an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, dated October 25, 1950, wherein an excluding decision of the board of special inquiry was affirmed.
Such action was predicated upon what purports to be an admission of the commission of larceny, a crime involving moral turpitude. The appellant was excluded from admission to the United States pursuant to the provisions of section 3 of the act of February 5, 1917 (8 U.S.C. 136). That section provides in part as follows:
That the following classes of aliens shall be excluded from admission into the United States * * *
* * * persons who * * * admit having committed a felony or other crime or misdemeanor involving moral turpitude * * *.
The appellant testified that she was born in Winnipeg, Manitoba, on January 7, 1933, and that she is a citizen of the Dominion of Canada; that she resides in the city of Windsor, Province of Ontario, Canada, where she is employed in the office of Lazare Furs.
The subject hereof applied for admission to the United States at Detroit, Mich., on June 12, 1950, as a nonimmigrant visitor under the provisions of section 3 (2) of the act approved May 26, 1924, in order that she might enter the United States for several hours for the purpose of acting as a sponsor in the baptism of an infant of a friend who resides in Detroit, Mich.
The appellant admitted that several months prior to her application for admission to the United States she was arrested in Sam's Department Store, Detroit, Mich., by the store detective for allegedly taking a lady's suit. This young lady stated that she did not go to the store for the purpose of stealing a suit and that she was not attempting to steal it. She explained that she did not know why she was leaving the store with the suit without paying for it. Thereafter she was detained for a period of from 8 to 10 hours during which time she was interrogated by an officer of the Immigration and Naturalization Service and on or about February 7, 1950, she was returned to Canada. The alien asserted that she was neither arrested previously nor since.
On page 5 appear the following questions and answers:
Q. Were you wearing the suit?
A. No.
Q. Did you have it concealed on your person?
A. I had the skirt on and I was carrying the jacket.
Q. Did you have the money to pay for the suit?
A. I had about three or four dollars, I think, that was all.
Q. What was the suit worth?
A. About 14 or 15 dollars.
Q. Had you ever before taken anything from a business place without paying for it?
A. No.
In further explanation the appellant stated that when she entered the United States she was wearing a winter coat and her other garments consisted of a blouse and a slip. Thereafter she was asked:
Q. Why were you coming without a dress or a skirt on?
A. I was going to get a skirt.
Q. Why were you doing so?
A. I was going to buy one here and go back in it.
Q. Why didn't you buy the skirt?
A. I was looking around and didn't find one.
The record of the board of special inquiry contains a note to the effect that the applicant is the subject of Detroit File 0800-75659 which file reveals that the alien was permitted to depart from the United States voluntarily on February 7, 1950. There is a notation to the effect, "The store declined to prosecute." The note is to the additional effect that the file is not available presently for the use of the board of special inquiry.
At this point it is significant that the record before the board of special inquiry contains no evidence whatsoever as to what the files of the local police officials contain and it is my opinion that a fair hearing should at least show the full disposition of the charge against this young applicant who at the time of apprehension was only a little more than 17 years of age. Because of the unavailability of the file it would appear that reliance is placed upon memory and this is faulty at best. Certainly a careful reading of the hearing before the board of special inquiry on June 12, 1950 did not sustain a charge of criminality but rather the alien was refused admission as shown on page 8 of the transcript as a person likely to become a public charge (8 U.S.C. 136).
That this charge was not sustained is shown adequately not only on the basis of the record but also on the basis of the decision in this case of Skrmetta v. Coykendall, 22 F. (2d) 120. Accordingly, the hearing before the board of special inquiry was reopened on July 3, 1950, apparently upon motion of the board of special inquiry.
The reason for the reopening is not clearly indicated. On the reopened hearing the following questions and answers appear:
Q. You testified when you were before the Board June 12, 1950, that you entered United States February 6, 1950, and that while in Sam's Store, Detroit, you put on a portion of a suit of ladies' clothing, particularly the skirt and carried the coat and left the store without paying for those garments and upon going out of the door at the store you were apprehended by an officer of the store with those articles in your possession. Is that correct?
A. Yes.
By reference to the record, itself, the alien did not quite so testify She was asked:
Q. Were you arrested in the United States?
A. Yes.
Q. Where?
A. At Sam's Department Store.
Q. Were you arrested inside the store or outside the store?
A. Right where you come out of the store.
During the course of the reopened hearing the following appears:
Q. I am going to read to you the definition of the term "larceny." Larceny is the felonious taking of the property of another without his consent and against his will with intent to convert it to the use of the taker. Do you understand the meaning of the word "larceny?"
A. Yes.
Q. Do you admit at this time that you did commit the offense of larceny at Detroit, Mich., February 6, 1950, when you took those articles of clothing from a Detroit store without paying for it?
A. Yes.
The reading purporting to be a common law definition of larceny as read into the record of the board of special inquiry is inaccurate and defective as hereinafter shown that it renders the admission by the alien of the commission of any offense thus described ineffectual so far as sustaining the charge in the warrant of arrest is concerned.
Moreover, and of greater importance the description in the question following the reading of what purports to be a common law definition of larceny is so constructed as to render an admission of the commission of larceny ineffective and consequently will not support the charge as contained in the warrant of arrest. Thus the case at bar is distinguishable from the decision of this Board in the Matter of J----, 2 IN Dec. 285, A.G., 1945, 56038/559, decided March 1, 1945.
Not only must a criminal intent be shown before a conviction can be obtained for the commission of crime but in the obtaining of the admission of the commission of such offense by one unfamiliar with the law, the same safeguards should obtain and at least a semblance of criminal intent shall be shown. In this regard the record is utterly lacking. Thus by reason of all of the foregoing; the hearing before the board of special inquiry is obviously and manifestly so unfair that the cause for exclusion should not be sustained on this basis alone.
Larceny is defined at common law in the National Cyclopedia of Law as the taking and carrying away of the personal property of another with a felonious intent to steal the same. Wharton in his work on criminal law, volume II, page 1313, after reviewing the definitions by East, Blackstone, Coke, and Hawkins, defines larceny to be the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent. The definition of larceny at common law as found in 36 Corpus Juris is the taking and carrying away from any place, at any time, of the personal property of another, without his consent, by a person not entitled to the possession thereof, feloniously, with intent to deprive the owner of his property permanently, and to convert it to the use of the taker or of some other person other than the owner.
That a comparison of the common law definition here as distinguished from that read into the record by the board of special inquiry will immediately show the imperfectness of the definition as given the alien by the board of special inquiry.
The majority in its opinion sets forth the definition of larceny in the Michigan Penal Code as follows:
Section 28.588. Larceny; property subject to; value, degree of crime. Section 356. Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels, or any bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order or certificate, or any book of accounts for or concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, if the property stolen exceed the value of fifty (50) dollars, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five (5) years or by fine of not more than two thousand five hundred (2,500) dollars. If the property stolen shall be of the value of fifty (50) dollars or less, such person shall be guilty of a misdemeanor.
Section 28.592. Larceny; from dwelling house, store, factory, ship, or other building. Section 360. Any person who shall commit the crime of larceny by stealing in any dwelilng house, office, store, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, or vessel shall be guilty of a felony. (Vov. 25, Michigan Statutes Annotated, 1938.)
Even if this definition were read to the alien the admission exacted from her cannot stand because of the construction of the question propounded to her upon which the affirmative answer was made and upon which the cause for deportation has been sustained. In this regard the hearing in this case is manifestly unfair and the charge must necessarily fall. The question is whether she was actually stealing.
The majority relies upon the case of the People v. Bradovich, 305 Mich. 329. In that case the defendant was charged with a lesser offense than larceny, to wit, attempted larceny and at best if the charge in the present proceeding sought to be sustained had been read into the record from the statutory definition in Michigan, there is considerable doubt that the admission could be sustained on the basis of the question asked of the alien by the board of special inquiry. It is therefore my opinion that the case of the People v. Bradovich is inapplicable.
There is an additional consideration and that is an admission in order to be effective must be an unequivocal admission. In the case at bar it is quite obvious that we do not have an unequivocal acknowledgement of guilt which acknowledgement would leave no fair ground for doubt or debate. Certainly it does not mean an admission of facts (see Howes v. Tozer, 3 F. (2d) 849), as here in the question propounded upon which the immediate admission is predicated.
Thus from the foregoing, it will be seen that we have an alien who had just barely passed her 17th birthday and when she answered in the affirmative she undoubtedly thought, in her unfamiliarity with the law, that she was merely admitting the facts as placed in that question. Larceny was imperfectly defined to her and since the admission was predicated on the facts set forth in the question propounded by the board of special inquiry, we do not have an unequivocal admission of the commission of larceny. Moreover the record is defective in that the files of the local police were not consulted, hence we are unaware of all of the facts pertaining to the subject alien's irregularity of conduct. We can well assume however that in all probability the police did not have sufficient evidence to prosecute. We likewise on a record so imperfect as here should not proceed to condemn and prosecute an infant. Any other application of the law to this case would be highly arbitrary and capricious and an utter miscarriage of justice. For all of the reasons herein set forth, it is my conclusion that the reason for inadmissibility is not sustained and that the temporary admission of the alien for a few hours should be permitted.
I concur in the dissent of Board Member Charles.
In accordance with the provisions of section 90.12 of title 8, Code of Federal Regulations, this case is certified to the Attorney General for review of the Board's decision.