56076/109
Decided by the Board October 1, 1942.
Crime involving moral turpitude — Polygamy (bigamy) (Massachusetts).
The crime of polygamy (bigamy) in violation of section 15, chapter 272, General Laws of Massachusetts, does not involve moral turpitude.
CHARGE:
Warrant: Act of 1917 — Admission or conviction of crime involving moral turpitude prior to entry — Polygamy.
Mr. George L. Wainwright, for the respondent.
Mr. Thomas A. Hughes, Board attorney-examiner.
STATEMENT OF THE CASE: The respondent is an alien, a native and citizen of Italy. He is 41 years of age and is married.
The respondent last entered the United States on October 26, 1937, at which time he was admitted for permanent residence.
On October 28, 1930, the respondent pleaded guilty to the charge of polygamy before the Superior Court for the County of Plymouth, Massachusetts. The court granted him probation.
The attorney for the respondent has filed a brief taking exceptions to the proposed findings of fact, conclusions of law, and order that the respondent be deported. It is his contention that a conviction of polygamy in Massachusetts is not a conviction of a crime involving moral turpitude.
DISCUSSION: In determining whether or not the commission of the crime of polygamy in Massachusetts involves moral turpitude, this Board is precluded from taking into consideration the facts surrounding the commission of the crime and must confine itself to an examination of the formal record of the conviction, and the statute as interpreted by the Massachusetts appellate court, upon which the judgment of conviction is predicated.
Chapter 272, section 15, of the General Laws of Massachusetts, provides as follows: "Polygamy. — Whoever, having a former husband or wife living, marries another person or continues to cohabit with a second husband or wife in the commonwealth shall be guilty of polygamy, and be punished by imprisonment in the state prison for not more than 5 years or in jail for not more than 2½ years or by a fine of not more than $500; but this section shall not apply to a person whose husband or wife has continually remained beyond sea, or has voluntarily withdrawn from the other and has remained absent for 7 consecutive years, the party marrying again not knowing the other to be living within that time, nor to a person who has been legally divorced from the bonds of matrimony and who is not the guilty cause of such divorce, nor to any person who has been legally divorced after the expiration of 2 years from the time of the entry of the absolute decree of divorce."
An appellate court of Massachusetts in the case of Commonwealth v. Hayden, 163 Mass. 453, stated as follows:
The different requests for rulings founded upon the contention that the defendant was not guilty of polygamy, if at the time he contracted his second marriage he had a bona fide and reasonable belief that his first wife was dead, were properly denied. We consider that question to have been settled in this jurisdiction by the decision in Commonwealth v. Mash, 7 Met. 472, rendered in the year 1844, in which, speaking of a statute substantially like that under which the present defendant was indicted, this court said that "it was not the intention of the law to make the legality of a second marriage, whilst the former husband or wife is in fact living, depend upon ignorance of such absent person's death."
Thus it is seen that in the State of Massachusetts a person may commit the crime of polygamy and be convicted thereof, even though at the time of the commission of the crime he had a bona fide reason to believe that his first spouse was dead and that he was not violating the law by entering into a second marriage. Violation of the statute in such a case cannot be said to be so shocking to the moral sensibilities of the community as to involve moral turpitude, and as the statute includes within its scope types of cases in which no moral turpitude is involved, it must be held that the respondent in committing the crime of polygamy in Massachusetts did not commit a crime involving moral turpitude.
In the case of Whitty v. Weedin, 68 F. 2d 127, the court stated as follows:
Upon the other question presented as to whether or not the crime of bigamy, admitted to have been committed by appellant in Canada before coming to this country, and for which he served a term of imprisonment, was such a crime as involved moral turpitude, the cases cited by appellant, claiming to indicate that under certain conditions a crime of bigamy might not involve moral turpitude, do not support his position. The crime of bigamy involved moral turpitude.
The court in reaching its decision that under the laws of Canada the commission of the crime of bigamy involves moral turpitude had under consideration only the laws of that country. The case is not a precedent for all cases of bigamy wheresoever committed. The laws of the State or country where the crime is committed must be considered in each individual case to determine whether or not the violation of such law or laws involves moral turpitude, and it is, therefore, unnecessary to consider a case involving the laws of Canada in determining whether or not the violation of a law of the State of Massachusetts involves moral turpitude.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the respondent is an alien, a native and subject of Italy;
(2) That the respondent last entered the United States on October 26, 1937;
(3) That on October 28, 1930, the respondent was convicted in Massachusetts of the crime of polygamy.
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 1917 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 into the United States, to wit: polygamy;
(2) That under section 19 of the Immigration Act of 1917 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 into the United States, to wit: polygamy.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings closed.