56050/167
Decided by the Board April 8, 1942.
Sentence to imprisonment for a year or more — Indeterminate sentence — Crime involving moral turpitude — Assault with a deadly weapon (Utah).
1. When an alien is given an indeterminate sentence for conviction of a crime, and by statute the maximum penalty for the offense is 5 years, he has been "sentenced to imprisonment for 1 year or more" within the meaning of section 19 of the Immigration Act of 1917. An indeterminate sentence is measured by the possible maximum of imprisonment.
2. Assault with a deadly weapon with intent to do bodily harm in violation of section 103-7-6 of the Revised Statutes of Utah is a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1924 — Immigrant without immigration visa. Act of 1917 — Likely to become a public charge; crime prior to entry — petit larcency.
Lodged: Act of 1917 — Conviction within 5 years after entry of crime involving moral turpitude — assault with deadly weapon.
Mr. Edwin B. Cannon, of Salt Lake City, Utah, for the respondent.
Mr. G.W. Carr, Board attorney-examiner.
STATEMENT OF CASE: Warrant of arrest was issued October 8, 1940. It was served November 20, 1940, and a hearing was held on the latter date at Salt Lake City, Utah. The presiding inspector finds the respondent subject to deportation as charged and recommends that he be deported to Mexico.
The matter is now before this Board for review and decision.
DISCUSSION: The respondent is a native and citizen of Mexico, of the age of 38 years. He last entered the United States June 5, 1937. He entered the United States at that time to live here with his wife and children, and was not in possession of an immigration visa. These facts are conceded by the respondent. It is apparent that he was an immigrant and was required to be in possession of an unexpired immigration visa at the time of his entry. The charge that the respondent was likely to become a public charge at the time of entry is based on the statement that he had only $78 at that time. He testified that that sum was sufficient to pay the transportation of himself and family to Salt Lake City, and that he started working 8 days after his arrival. Nothing in the record indicates that he was not able to work, and this charge cannot be sustained.
The Government introduced in evidence a certified transcript of the City Criminal Docket of Ogden, Utah, showing that on April 6, 1934, one P---- R----, was convicted on his plea of guilty of the crime of petit larceny. The respondent was asked if he had anything to say regarding this. He did not answer, but his attorney stated that the record should show that the respondent did not recall specifically being convicted of petit larceny. This is not an admission of the crime, and since there was no evidence to identify the respondent as the person convicted in said criminal proceedings, it must be held that it has not been proved that the respondent was convicted of the crime of petit larceny prior to entry.
There were also introduced in evidence certified copies of an information and judgment showing that on November 2, 1940, in the District Court of the Third Judicial District in and for Salt Lake County, State of Utah, one P---- R---- was sentenced because of his conviction of the crime of assault with a deadly weapon to be imprisoned in the Utah State Prison "for the indeterminate term as prescribed by law for the crime of assault with a deadly weapon." The testimony of the respondent shows that he is the P---- R---- named therein.
The statute under which the respondent was convicted is section 103-7-6 of the Revised Statutes of Utah of 1933, which reads as follows:
Sec. 103-7-6. With a Deadly Weapon. Every person who with intent to do bodily harm and without just cause or excuse, or when no considerable provocation appears, or when the circumstances show an abandoned or malignant heart, commits an assault upon the person of another with a deadly weapon, instrument, or other thing is punishable by imprisonment in the State prison not exceeding 5 years, or by fine not exceeding $1,000, or by both.
The information charged "the crime of assault with a deadly weapon" committed as follows, to wit:
That the said P---- R----, on the 17th day of August A.D. 1940, at the County of Salt Lake, State of Utah, did willfully, unlawfully, and feloniously, with intent to do bodily harm to E---- L----, and without just cause or excuse, and without any considerable provocation, make an assault in and upon the person of the said E---- L----, with a certain deadly weapon called a knife, which deadly weapon the said P---- R---- then and there had and held in his hand, and struck at the said E---- L----.
It has been generally held that the crime of assault with a deadly weapon is one involving moral turpitude. United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757 and cases therein cited. The violation of a statute substantially the same as the one now under consideration has been held to involve moral turpitude beyond any question. Weedin v. Tayokichi Yamada, 4 F. 2d 455. That case involved section 2749 of Rem. Bal. Code 1910 of the State of Washington. This section reads as follows:
An assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show a willful, malignant, and abandoned heart, shall subject the offender to imprisonment in the penitentiary not exceeding 2 years, or to a fine not exceeding $5,000, or to both such fine and imprisonment.
On the question of whether the sentence was for 1 year or more, it is necessary to consider the provisions of the indeterminate sentence law of Utah. This provision is contained in section 105-36-20 of the Revised Statutes of Utah of 1933. This section provides as follows:
Whenever any person is convicted of any crime, except treason or murder in any of the degrees thereof, committed after May 12, 1919, and the judgment provides for punishment in the State prison, the court shall not fix a definite term of imprisonment; but the sentence and judgment of imprisonment in the State prison shall be for a period of time not less than the minimum and not to exceed the maximum term provided by law for the particular crime for which such person has been convicted. Every such sentence, regardless of its form, or whether it, by its terms, purports to be for a shorter or different period of time, shall, nevertheless, be construed and held to be a sentence for the term between the minimum and maximum periods of time provided by law for the particular crime of which the person is convicted, and shall continue in full force and effect until the maximum period has been reached, unless sooner terminated or commuted as provided by law.
The Supreme Court of Utah has held that under the foregoing statute the Board of Pardons has jurisdiction to fix the term to be served by one sentenced under it at any period equal to or less than the maximum sentence for the crime involved regardless of deductions for good behavior. Cardisco v. Davis, Warden of Utah State Prison, 91 Utah 323, 64 P. 2d 216. The maximum sentence for the crime in this case is 5 years. There is ample authority for the proposition that an indeterminate sentence is measured by the possible maximum during which the alien is liable to serve. United States ex rel. Parenti v. Martineau, 50 F. 2d 902; United States ex rel. Paladino v. Commissioner, 43 F.2d 821; United States ex rel. Amato v. Commissioner, 18 F. Supp. 480; United States ex rel. Guarino v. Uhl, 27 F. Supp. 135. Therefore, the sentence in the instant case must be held to be for more than 1 year and the charge that the respondent has been sentenced to imprisonment for 1 year or more upon conviction of a crime involving moral turpitude committed within 5 years after entry must be sustained.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case it is found:
(1) That the respondent is an alien, a native and citizen of Mexico;
(2) That the respondent last entered the United States on June 5, 1937, at Laredo, Texas;
(3) That the respondent was not likely to become a public charge at time of entry;
(4) That the respondent has not admitted the commission of the crime of petit larceny prior to entry;
(5) That the respondent's record does not establish that the respondent has been convicted of the crime of petit larceny prior to entry;
(6) That the respondent at the time of entry intended to remain permanently in the United States;
(7) That the respondent at the time of entry was not in possession of an immigration visa;
(8) That the respondent was convicted in the District Court in and for Salt Lake County, Utah, of the crime of assault with a deadly weapon committed August 17, 1940;
(9) That the respondent on November 2, 1940, was sentenced upon his conviction of the foregoing offense to imprisonment in the Utah State Prison for an indeterminate term with a maximum of 5 years.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation upon the ground that at the time of his entry he was not in possession of an unexpired immigration visa;
(2) That under sections 3 and 19 (a) of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he was a person likely to become a public charge at time of entry;
(3) That under sections 3 and 19 (a) of the Immigration Act of 1917, as amended, the respondent is not subject to deportation on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry to the United States to wit: petit larceny;
(4) That under sections 3 and 19 (a) of the Immigration Act of 1917, as amended, the respondent is not subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry to the United States, to wit: petit larceny;
(5) That under section 19 (a) of the Immigration Act of 1917, as amended, the respondent is subject to deportation on the ground that he has been sentenced subsequent to May 1, 1917, to a term of imprisonment 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 with a deadly weapon;
(6) That under section 20 of the Immigration Act of 1917 the respondent is deportable to Mexico at Government expense.
OTHER FACTORS: The respondent entered the United States at El Paso, Texas, December 14, 1914, with his parents, but there is no record of his admission at that time. He has lived in the United States for 27 years with the exception of a visit to Mexico of 7 months. The respondent has a wife and four children who are citizens of the United States who are dependent upon him for support.
ORDER: It is ordered that the alien be deported to Mexico at Government expense on the following charges:
(1) That at the time of his entry he was not in possession of an unexpired immigration visa;
(2) That, subsequent to May 1, 1917, 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 with a deadly weapon.