A-7849423
Decided by Central Office May 7, 1952. Approved by the Board September 26, 1952
Crimes involving moral turpitude; unlawful disposing of narcotics — Crimes involving moral turpitude, by States: Washington: disposing of narcotic drugs unlawfully.
(1) The crime of disposing of narcotic drugs unlawfully in violation of the laws of Washington, chapter 249 (S.B. 300) Criminal Code is not an offense involving moral turpitude, since no element of intent, motive or knowledge is required for conviction.
EXCLUDED:
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Disposing of narcotic drugs unlawfully.
BEFORE THE CENTRAL OFFICE
(May 7, 1952)
Discussion: The record relates to a 59-year-old married male, native and citizen of Canada, who applied at Sumas, Wash., on March 29, 1950, for admission into the United States for a temporary period of 2 days. After a hearing before a Board of Special Inquiry, he was held excludable on August 29, 1950, on the ground stated above. He has appealed from that decision.
Appellant was convicted on June 8, 1921, in the superior court of the State of Washington at Bellingham, Wash., of the crime of disposing of narcotic drugs unlawfully in violation of the laws of Washington, 1909, chapter 249 (S.B. 300) Criminal Code and was sentenced to pay a fine of $50. The particular section of the Criminal Code violated was section 257 which was headed "Regulating the Sale of Narcotic Drugs" and read in full as follows:
It shall be unlawful for any person to sell, furnish, or dispose of any opium, morphine, alkaloid-cocaine, or alpha or beta eucaine, or any derivative, mixture, or preparation of any of them, except upon the signed prescription of a physician duly licensed under the laws of this State, which prescription shall be retained by the person dispensing the same, shall be filled but once, and of which no copy shall be taken by any person. The person dispensing the same shall at the time thereof indorse on the back of such prescription the name and street and house number of the person to whom dispensed and the proprietor or manager of the store where dispensed shall keep all such prescriptions in a permanent file, separate from all other prescriptions, in his place of business for the period of 2 years after the same shall have been dispensed, and shall at any time allow the same to be inspected, and copies thereof to be made by any peace officer, the prosecuting attorney of the county where sold, or any authorized inspector of drugs: Provided, That nothing herein contained shall prohibit any manufacturer or licensed druggist from selling or delivering any of the drugs named to a person known to be a licensed physician or licensed druggist, nor prohibit a physician from dispensing the same in good faith to his patients, nor prohibit the sale of patent or proprietary medicines containing opium or morphine, in combination or compound with other active elements wherein the dose of opium is less than one quarter grain, or the dose of morphine is less than one-twentieth grain. Every person who shall violate any of the provisions of this section shall be guilty of a gross misdemeanor.
The information, captioned "Information for Disposing of Narcotic Drugs Unlawfully," charged the offense, without more, in the language of the statute; namely, the defendant "did wilfully and unlawfully sell, furnish, and dispose of morphine and cocaine, and a derivative, mixture, and preparation of them, without having a signed prescription of a physician duly licensed under the laws of this State for so doing." Appellant has testified that he was then engaged in bootlegging and was asked by a person to deliver the narcotics to a certain poolroom but was arrested while on his way to make the delivery and the narcotics were found in his possession. He was aware that he was transporting narcotics and pleaded guilty at the trial. He has testified that he was not a user of narcotics.
It has been held that the violation of the Harrison Antinarcotic Act of December 17, 1914 (26 U.S.C.A. 2550-2567), does not involve moral turpitude. In the case of U.S. ex rel. Andreacchi v. Curran, 38 F. (2d) 498 (S.D., N.Y., 1926), it was stated:
* * * The crime consists not in engaging in narcotic traffic, but in merely failing to register, pay a tax, and comply with certain regulations of the Internal Revenue Commissioner. It is to be regarded solely as a revenue act whatever incidental results might accompany its enforcement. No case has been brought to my attention, nor do I find any which holds that the violation of a revenue or licensing statute involves moral turpitude.
The fact that the thing may be done, providing a tax is paid to the Government indicates that the act itself does not involve moral turpitude. Undoubtedly, a person might be punishable under the Harrison Antinarcotic Act and not be guilty of moral turpitude, as, for instance, where there is a failure to comply with it, not because of any intention to furnish addicts with narcotics, but merely because of an oversight or lack of information regarding the statute.
There may be a violation of the Harrison Antinarcotic Act, although actual willful or wrongful intent are absent and these elements are, in my judgment, necessary for a finding of moral turpitude.
Similarly a violation of the Federal Narcotic Drugs Import and Export Act (21 U.S.C. 171-185) has been held not to involve moral turpitude, ( Matter of V----, 1 IN Dec. 293 (B.I.A., 1942)). Also, in the case of Pippin v. State, 197 Ala. 613, 73 So. 340, the court held that "selling cocaine is an offense but it does not involve moral turpitude."
To the contrary, however, in the case of the Matter of Y----, 2 IN Dec. 600 (B.I.A., 1946), it was held that a violation of section 4 (f) of the Canadian Opium and Narcotic Drug Act, which provided for the punishment of every person who "manufactures, sells, gives away, or distributes any drug or substance represented or held out to be a drug to any person without first obtaining a license from the Minister," involves moral turpitude. The Board held that this provision of the Canadian statute, as distinguished from the Andreacchi decision, involved principally a criminal statute, rather than a licensing or revenue statute. The Board furthermore pointed out that the Canadian courts had held that mens rea was not an element of the offense of possession of drugs, that no such specific holding had been made by the Canadian courts in respect to the unlawful sale of drugs although it had been held in one case relating to possession of drugs that general criminal intent was required. From the decision of the Board, it can be inferred that, as distinguished from the Andreacchi case, a violation of the provision of the Canadian statute relating to the unlawful sale of drugs required criminal intent.
In cases, not dealing with immigration status it has been held that violation of a narcotic law does involve moral turpitude. The Board of Immigration Appeals in the case of the Matter of Y---- ( supra), cited the cases of Menna v. Menna, 102 F. (2d) 617 (U.S.C.A., D.C., 1939) and Du Vall v. Board of Medical Examiners, 49 Ariz. 329, 66 P. (2) 1026 (1937). In the Menna case, the court was explicit in the view that violation of the Harrison Act was a crime involving moral turpitude and therefore a ground for divorce in the District of Columbia. In the Du Vall case, a case involving an order revoking a physician's license for conviction of the Harrison Act, the supreme court of Arizona recognized the "revenue feature" of the act of being "but a fiction." In the case of Speer v. State, 109 S.W. (2) 1150 (1937), where the revocation of a license to practice medicine because of the holders conviction of violating the Harrison Narcotic Act was sustained, the Texas Court of Civil Appeals characterized the argument that moral turpitude did not attach because the Harrison Act was a "revenue measure" only "as being naive" and cited the observation of Mr. Justice Holmes, in U.S. v. Jin Fuey Moy, 241 U.S. 394, "It may be assumed that the statute has a moral end as well as revenue in view." In the case of In re McNeese, 346 Mo. 425, 142 S.W. (2) 33 (1940), in a case involving a disbarment proceeding wherein there had been a conviction for violation of the Harrison Narcotic Act, the supreme Court of Missouri stated "Clearly, the act of feeding opium to a fellowman involved moral turpitude." In the case of Brainard v. State Board of Medical Examiners of California, 68 Calif. App. (2) 591, 157 P. (2) 7 (1945), involving a proceeding to compel restoration of a physician's license which had been revoked after the holder's conviction for violation of section 11225 of the California Health and Safety Code, requiring a record of narcotics dispensed, the Supreme Court of California observed that in determining moral turpitude, the court could consider any "evidence concerning all of the circumstances surrounding the offense for the purpose of determining if indeed moral turpitude was involved."
It should be noted, however, that in the cases cited in the preceding paragraph, the State courts had before them in one case the question of a divorce which involved a matter of public policy of the State and in the other case situations involving members of a professional, i.e., physician and attorney, who are required to have a higher standard of conduct in connection with the practicing of their profession. However, in considering whether a crime involves moral turpitude for immigration purposes, we are presented with an issue narrower in scope than that which confronted the State courts. It is well established that, for immigration purposes, in determining whether an offense involved moral turpitude, it is not permissible to consider the circumstances under which the crime was committed. The inquiry is limited to the inherent nature of the crime as defined by the statute and established by the record of conviction; i.e., the charge (indictment or complaint), plea, verdict, and sentence, ( U.S. ex rel. Mylius v. Uhl, 203 F. 152 (D.C., N.Y., 1913) aff'd. 210 Fed. 860; U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933)). Furthermore, it is also well established that moral turpitude inheres in the intent, ( U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa. 1930)). With these considerations in mind, we turn to a consideration of the statute under which appellant was convicted.
The entire section 257 of chapter 249 of the laws of Washington, 1909, has been set forth above. The information, without more, charged appellant with violation of the statute in the terms of the statute. There is nothing in the statute or the information to show that intent was a prerequisite to a conviction. The reported decisions of the courts of the State of Washington, involving the question of mens rea in the violation of the narcotic laws of that State, are limited. Section 257 was superseded by the enactment of a more comprehensive statute in 1923 relating to possession of narcotics as well as the sale thereof. Remington's Revised Statutes of Washington (1932), sections 2509-1 to 2509-14, inclusive. In respect thereto, it has been held that mere possession of narcotics unaccompanied by elements of intent to sell, furnish, or dispose of same or any proof of unlawful acquisition is not a crime but possession accompanied by either of these elements is a crime, ( State v. Lee, 127 Wash. 377, 220 P. 753 (1923); State v. Radford, 135 Wash. 120, 236 P. 804 (1925)). The only reported case, prior to the enactment of the 1923 succeeding act, dealing with sale of narcotics without the required prescription is that of State v. Smith, 103 Wash. 267, 174 P. 9 (1918). In that case, the defendant appealed from a conviction of selling morphine without a physician's prescription and evidence was admitted of various alleged illegal sales of morphine by appellant to four persons other than the prosecuting witness. The supreme court of Washington stated:
There is no more insidious and dangerous testimony than that which attempts to convict a defendant by producing evidence of crimes other than the one for which he is on trial, and such testimony should only be admitted when clearly necessary to establish the essential elements of the charge which is being prosecuted. To establish guilty intent, unlawful motive, or criminal knowledge, it is permissible to show that the act charged against the defendant was one in a series of similar ones; but beyond this the state cannot go, and for the purpose of securing a conviction show the perpetration of other similar acts, even though committed in furtherance of a general scheme, where there is no proof required to establish intent, motive, or knowledge, other than proof of the act charged itself. In other words, where the act charged against the defendant characterizes the offense, the guilty intent is proven by proving the act. Here the proof of giving of dry morphine on a prescription calling for morphine in solution was proof of the intent, and nothing more was necessary to establish criminality * * *. In the case before us the evidence, not coming within the exception to the rule, should have been excluded. [Italics supplied.]
Thus it appears that the supreme court of Washington has held that in a proceeding for violation of the statute dealing with sale of narcotics without the required prescription, no proof is required to establish intent, motive, or knowledge and the only requirement for the obtaining of a conviction is proof of the sale without the required prescription. This case was followed and cited with approval by the supreme court of the State of Washington in the case of State v. Linder, 287 P. 16, 156 Wash. 452 (1930), involving a conviction for unlawful sale of narcotic drugs under the succeeding act. The court in the latter case stated:
Appellant is not charged in the information with having issued illegal prescriptions. He is charged simply with having made a sale to the person named on March 20, 1929. There is no element of intent involved in that offense. Proof of that sale beyond a reasonable doubt completely proved the crime charged * * *.
Respondent attempts to distinguish the Smith case upon the ground that it was a prosecution against a druggist for selling morphine without a physician's prescription. Nevertheless it was a prosecution in which intent was not material * * *.
From the foregoing, it is apparent that a conviction may be had under the statute involved, where no element of intent, motive, or knowledge is present. Consequently, it cannot be concluded that moral turpitude inheres in the crime set forth in the statute under which appellant was convicted. The offense which he committed does not involve moral turpitude.
It is therefore concluded that appellant was not convicted of a crime involving moral turpitude. He is not excludable on the ground urged by the board of special inquiry and his admission to the United States as a temporary visitor will be authorized.
Order: It is ordered that the appeal be sustained and the alien admitted as a temporary visitor for 2 days.
It is further ordered that the case be certified to the Board of Immigration Appeals for final decision in accordance with 8 C.F.R. 90.3 (b).
APPROVED BY THE BOARD
(September 26, 1952)
Order: It is ordered that the decision of the Assistant Commissioner of May 7, 1952, sustaining the appeal and authorizing the alien's admission as a temporary visitor be approved.