E-19692 (A-8076039)
Decided by the Board December 23, 1953
Crime involving moral turpitude — Gross Indecency, Michigan.
(1) The crime of gross indecency in violation of section 338 of the Public Acts of Michigan (1931) may or may not involve moral turpitude.
(2) Where the record of conviction, upon which a determination of moral turpitude must be based, does not contain sufficient information upon which to determine the moral obloquy of the crime, a finding of moral turpitude may not be made. (See also Matter of C----, Int. Dec. No. 482, B.I.A., October 12, 1953.)
CHARGE:
Warrant: Act of 1917 — Crime within 5 years: Gross indecency.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the hearing officer's decision of November 20, 1952, directing the alien's deportation from the United States in pursuance of law on the charge stated in the warrant of arrest. The alien has excepted to the findings of fact as to deportability and to the conclusions of law as to deportability.
The facts of this case have been succinctly set forth in the opinion of the hearing officer and there is no need to repeat them all here. Suffice it to say that deportability is predicated on the alien's conviction in the Recorder's Court, city of Detroit, Mich., on August 1, 1952, of the crime of gross indecency. On August 12, 1952, he was sentenced to serve from 6 months to 5 years in the State prison of southern Michigan, county of Jackson. The only issue presented by this case is whether the evidence of record sustains the alien's deportability on the grounds urged by the hearing officer.
The record shows that the respondent was convicted for violation of section 338 of the Public Acts of Michigan (1931) which reads as follows:
Any male person who, in public or private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony punishable by imprisonment in the State prison for not more than 5 years or by a fine of not more than $2,500.
The information on which that conviction was had charges that the subject, on June 8, 1952, "being then and there a male person, did then and there commit, was a party to the commission, did procure or attempt to procure the commission of an act of gross indecency with another male person, to wit: * * *." That is, the information is worded in the general language of the statute. The record of conviction merely shows that the subject pleaded not guilty, but was convicted of having committed the crime of "gross indecency" and was sentenced to imprisoment for a period of not less than 6 months, and not more than 5 years and that the court makes no recommendation.
Examining the record of conviction, we find that the information charges the respondent in the general language of the statute. That is, it does not specify the acts he is charged with having committed in violation of the statute. The judgment of conviction and sentence adds nothing to the record in this respect. The respondent's testimony in these proceedings does cast some light on the nature of the acts he is alleged to have committed, but we are precluded from going outside the record of conviction to consider such testimony ( United States ex rel. Mylius v. Uhl, 210 Fed. 860 (C.C.A. 2, 1914)).
It appears that the respondent was charged with having pulled his son's pants down and thereby having committed an act of gross indecency with him. However, he has denied his guilt and it appears that the charge was brought by his wife as the result of an altercation with the respondent and it was she who obtained the additional witnesses to give testimony which, along with her own, sufficed to bring about the conviction. It now appears that the charge may not have been based on fact, that she now regrets having brought the charge, and that she desires to have the respondent return to live with her and their son.
It is apparent to us that the statute covering the crime of gross indecency in the State of Michigan is couched in language which is broad enough to include acts which do and acts which do not involve moral turpitude. We have pointed out that it is improper to go to testimony or evidence as to nature of the particular act, but that we must base a determination of moral turpitude upon record of conviction. However, here the record of conviction is of no assistance in determining the moral obloquy of the crime. Therefore, a finding of moral turpitude cannot be made. ( Matter of C----, A-5595280, B.I.A., October 12, 1953, Int. Dec. No. 482.)
On the basis of the foregoing, there is no ground on which to predicate a finding that the alien has been convicted of a crime involving moral turpitude, to wit: Gross indecency, in violation of section 338 of the Michigan Public Acts of 1931. Accordingly, the appeal must be sustained and the proceedings terminated. We will now so order.
Order: It is ordered that the appeal be and the same is hereby sustained.
It is further ordered that the proceedings be and the same are hereby terminated.