56065/487
Decided by the Board November 20, 1942.
Crime involving moral turpitude — Assault (Calif.).
Assault in California by means of force likely to produce great bodily injury (striking, hitting, and beating the person assaulted upon the head with a glass milk bottle) involves moral turpitude.
CHARGE:
Warrant: Act of 1917 — Convicted of crime involving moral turpitude within 5 years after entry — assault by means and force likely to produce great bodily injury.
Mr. Irving Jaffe, Board attorney-examiner.
STATEMENT OF THE CASE: A hearing was afforded the respondent on April 11, 1941, at the California State Prison at San Quentin, Calif., on the charge stated in the warrant. The presiding inspector recommended deportation.
DISCUSSION: The respondent testified that he is 38 years old, single, and a native of Palestine. He claims lack of citizenship anywhere, but has never been naturalized in any country. The respondent first entered the United States in December 1919 and last entered the United States on June 21, 1937, while in possession of a reentry permit.
The respondent was convicted on August 25, 1939, in the Superior Court at San Francisco, Calif., for the crime of assault by means and force likely to produce great bodily injury. He was sentenced to imprisonment in the State Prison at San Quentin, Calif., his term being subsequently fixed by the parole board at 8 years.
The respondent is not deportable unless the crime for which he was convicted involves moral turpitude.
It has been held in various jurisdictions that the crime of assault does not necessarily involve moral turpitude ( Weedin v. Tayokichi Yamada, 4 F.2d 455 (Wash.); United States ex rel. Morlacci v. Smith, 8 F. 2d 663 (N.Y.); United States ex rel. Griffo v. McCandless, 28 F. 2d 287 (Pa.)).
To determine whether an act shows that degree of baseness, vileness, or depravity as will constitute moral turpitude, we must look to the indictment or information upon which conviction was based.
The information lodged against the respondent states that on March 6, 1939, in San Francisco, Calif., the respondent —
* * * did then and there willfully, unlawfully, and feloniously commit an assault in and upon the person of one Irene Totah by means and force likely to produce great bodily injury, to wit: by then and there with a glass milk bottle striking, hitting, and beating the said Irene Totah in and upon and about the head, face, and body and thereby causing her great bodily injury.
In United States ex rel. Morlacci v. Smith, supra, the court said:
Mere assault and battery does not involve such degree of depravity (as to constitute moral turpitude), but an assault with a dangerous weapon, in this case a revolver, and shooting the person, is simply an act which includes something done by the assailant contrary to good morals and proper conduct. [Matter in parentheses added.]
In the instant case the respondent willfully assaulted another with a glass milk bottle. A glass milk bottle used as a club or bludgeon is a dangerous weapon — more dangerous conceivably than a razor or a knife, and capable of inflicting as severe a wound as a revolver. It would seem, therefore, that this respondent in willfully inflicting great bodily injury upon another by use of a dangerous weapon has committed a crime involving moral turpitude.
The case of S---- B---- (56018/361) [ see page 52, this volume], presented a similar situation to this Board. In that case deportation was sought on the ground that the alien had twice been sentenced to imprisonment, subsequent to entry, for more than 1 year for crimes involving moral turpitude. Both crimes were second-degree assault. One indictment charged a willful felonious assault with intent to inflict grievous bodily harm with a weapon unknown. The other indictment contains similar language, but described the weapon as a large beer glass. This Board was of the opinion that the crimes charged involved moral turpitude. The Attorney General in reversing the Board considered only the assault committed with an unknown weapon. The opinion of the Attorney General states:
* * * The offense charged against the respondent in the 1931 indictment — second-degree assault with an unknown weapon, and therefore conceivably not a dangerous weapon — did not necessarily involve moral turpitude. See Ex Parte George, 180 Fed. 785, 786, holding that a "felonious assault" which amounted to striking another with a large piece of firewood during a quarrel did not involve moral turpitude. While I find no occasion to use it or to consider the propriety of doing so, I think I may properly mention the respondent's claim and testimony in the deportation proceeding that he struck his wife with a stick under circumstances of extreme provocation.
As in United States [ ex rel. Zaffarano] v. Corsi, [ 63 F. 2d 757], it is unnecessary to consider here the other assault charge because the order for the arrest of the respondent in order to be valid must be supported by two convictions of offenses involving moral turpitude.
Since the Attorney General ruled in the B---- case that an unknown weapon was conceivably not a dangerous weapon, it was not necessary to consider the dangerous potentialities of a beer glass when used as a weapon.
In the instant case, however, the use of glass as a weapon is directly in issue. As stated before, we believe that a glass bottle used as a club is a dangerous weapon, and its use in an assault evidences sufficient baseness and depravity to impute moral turpitude to its user.
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 Palestine;
(2) That the respondent last entered the United States on June 21, 1937, at Boston, Mass.;
(3) That the respondent was convicted on August 25, 1939, in San Francisco, Calif., of the crime of assault by means and force likely to produce great bodily injury committed on March 6, 1939, and the respondent was sentenced, therefore, for a term of 8 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of February 5, 1917, the respondent is subject to deportation on the ground that he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: assault by means and force likely to produce great bodily injury;
(2) That under section 20 of the Immigration Act of February 5, 1917, the respondent is deportable to Palestine at the expense of the Government.
OTHER FACTORS: The respondent has no one in the United States who is dependent upon him for support. He has two brothers residing in the United States and a sister and an uncle residing in Palestine.
ORDER. It is ordered that the alien be deported to Palestine at Government expense on the charge stated in the warrant.
It is further ordered, That execution of the warrant be deferred until the alien is released from imprisonment.