56131/71
Decided by the Board August 21, 1943
Crime involving moral turpitude — Manslaughter, first degree (Minnesota).
Manslaughter, first degree, as defined by section 619:14 (2) and section 619:15 (2), Minnesota Statutes, 1941, which is the equivalent of the common-law crime of voluntary manslaughter, involves moral turpitude.
CHARGE:
Warrant: Act of 1917 — Convicted of crime involving moral turpitude committeed within 5 years after entry — manslaughter, first degree.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The presiding inspector proposes that the respondent be found subject to deportation on the charge above specified. The Central Office concurs.
DISCUSSION: The respondent is a native and citizen of Mexico, 44 years of age, married. He last entered the United States on January 20, 1938, at Laredo, Tex. On October 15, 1941, he was indicted in the District Court of Waseca County, Minn., on the charge of murder in the first degree, in that on August 30, 1941, he killed without excuse or justification, and with a premeditated design * * * Severina Segura by means of a deadly weapon, to wit: a firearm, commonly called revolver, * * * then and there shooting the said Severina Segura with said revolver * * *. The respondent was tried by a jury, which returned a verdict of manslaughter in the first degree. On November 3, 1941, he was convicted of manslaughter in the first degree and sentenced to imprisonment for a term not to exceed 20 years.
The question presented for decision is whether on the record before us the respondent has been convicted of the commission of a crime involving moral turpitude. We recently had occasion to consider a somewhat similar question in the case of V---- S---- (56020/580), decided June 5, 1943. There the respondent who had been charged by information in the State of Michigan with murder was convicted of manslaughter. The Michigan Penal Code does not recognize any grades or degrees of manslaughter, and the offense is committed when one person kills another through certain acts specified in the statute, some of which involve criminal intent and others do not. We concluded, upon the record before us in that case: "It is impossible * * * to find that the respondent's act carried with it a vicious intent." We said:
The record of sentence * * * states merely "convicted of the crime of manslaughter," while the information alleges only that the respondent "murdered Antonio Jacobs." The record of conviction does not indicate in what manner the crime was committed, and, therefore, it might have involved moral turpitude or, conversely, it might not have embraced the elements of intent. In the absence of any evidence to determine this fact, we cannot conclude that the alien has been convicted of a deportable offense ( United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757).
The statutes of Minnesota, with which we are now concerned, define manslaughter in the first degree in several sections (2 Minn. Statutes (1941) secs. 619:14-619:16):
Section 619:14 defines manslaughter in the first degree as homicide "when committed without a design to effect death: (1) By a person engaged in committing or attempting to commit a misdemeanor or gross misdemeanor affecting the person or property either of the person killed or of another; or (2) in the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon."
Section 619:15 provides that a homicide is manslaughter in the first degree "when committed without a design to effect death: (1) By a person engaged in committing or attempting to commit a misdemeanor affecting the person or property either of the person killed or of another; (2) in the heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon; or (3) by shooting another with a gun or other firearm when resulting from carelessness in mistaking the person shot for a deer or other animal."
Section 619:16 provides that "Every person who shall wilfully kill an unborn quick child by an injury inflicted upon the person of its mother, and every person who shall provide, supply or administer to a woman * * * any medicine, etc., with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life * * * and the death of the woman, or that of any quick child of which she is pregnant, is thereby produced, shall be guilty of manslaughter in the first degree."
Since the respondent was not convicted as charged, there must be eliminated from consideration such allegations of the indictment that are peculiarly appropriate to the crime of murder, first degree. ("Without excuse or justification and with a premeditated design.") (Cf. In re F---- A---- (56031/635); In re M---- G---- (56122/766) [ see page 403, this volume].)
What remains is the fact that the respondent was charged with the killing of another person with a deadly weapon, which, according to the verdict of the jury, amounted to manslaughter in the first degree. Since the homicide was consummated by means of a revolver, our inquiry is limited to a consideration of subdivision (2) of section 619:14 and subdivisions (2) and (3) of section 619:15. As the indictment is framed, we do not think that the crime falls within subdivision (3) of section 619:15. With respect to subdivision (2) of sections 619:14 and 619:15, the question has been answered by United States ex rel. Sollano v. Doak, 5 F. Supp. 561 (D.C., N.Y., 1933), affd. 68 F. 2d 1019. There the alien had been convicted of manslaughter in the first degree under section 1050 of the Penal Law of New York, reading:
Such homicide is manslaughter in the first degree, when committed without a design to effect death * * *.
2. In the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon.
In concluding that the crime was one involving moral turpitude, the court said:
The crime of assault is a less serious crime than manslaughter. That assault with a dangerous weapon involves moral turpitude was held in United States ex rel. Morlacci v. Smith (D.C.) 8 F. 2d 663; Weedin v. Tayokichi Yamada, 4 F. 2d 455 (C.C.A. 9, 1925). The alien stresses the language of definition of manslaughter as excluding intent. Absence of intent, necessarily implies absence of moral turpitude, argues the alien. The only intent lacking in manslaughter in the first degree is intent to effect death. Had there been intent to kill, it would not have been manslaughter in the first degree but murder. The lack of such an intent does not mean lack of an intent to inflict grievous bodily harm or lack of intent to injure or such lack of intent as to negative moral depravity. If the dangerous weapon is used solely in self-defense without the use of excessive force and under circumstances which justified the use of the weapon, no crime at all would be committed. The conviction, however, negatives all elements of self-defense. But one who uses a dangerous weapon like a revolver, not in self-defense, but in such a way as to cause the death of another, must be held so lacking in sense of moral responsibility as to be morally depraved and his act to be one involving moral turpitude. Both upon reason and authority, the crime of manslaughter in the first degree involves moral turpitude.
We conclude that the crime of which respondent was convicted was the equivalent of the common law crime of voluntary manslaughter, and that it involves moral turpitude.
FINDINGS OF FACT: Upon the basis of the evidence, 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 January 20, 1938, at Laredo, Tex.;
(3) That on October 15, 1941, the respondent was indicted in the District Court of Waseca County, Minn., for murder in the first degree;
(4) That said indictment charged that the respondent on or about August 30, 1941, without excuse or justification and with a premeditated design, killed another person by shooting him with a revolver;
(5) That the respondent was tried by a jury which brought in a verdict of guilty of manslaughter in the first degree;
(6) That on November 3, 1941, the respondent was convicted of the crime of manslaughter in the first degree;
(7) That for the foregoing offense the respondent was sentenced to imprisonment for a term not to exceed 20 years.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation in that on or after 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: manslaughter in the first degree.
OTHER FACTORS: The respondent is married to a native and citizen of Mexico. His wife and four minor children born in the United States reside in El Paso, Tex. His criminal history is a long one.
ORDER: It is ordered that the alien be deported to Mexico, at Government expense, on the charge contained in the warrant of arrest.
It is further ordered, That execution of the warrant be deferred until the alien is released from imprisonment.