56156/249
Decided by the Board January 27, 1944. Ruling by Attorney General, February 24, 1944.
Crime involving moral turpitude — Theft in Canada — Evidence.
"Theft or stealing" under Canadian statute includes offenses which would not be so characterized in our law. Thus, a person may be convicted of theft in Canada when the real offense is not known by that name in our law and does not involve moral turpitude. In these circumstances, it is permissible to go beyond the foreign statute and to consider such facts as may appear from the record of conviction or the admissions of the alien, in order to determine by independent judgment whether, under our law, the offense is one which involves moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Theft, in Canada.
BEFORE THE BOARD
Discussion: The appellant, a native and citizen of Canada, 21 years of age and single, applied at Detroit, Mich., on June 22, 1943, for admission to the United States as a local border crosser. He presented a nonresident alien's border crossing identification card issued to him May 10, 1943, by the American consulate at Windsor, Ontario, and properly endorsed by the Canadian immigration authorities. A Board of Special Inquiry excluded him on the ground above stated after hearings on June 22, 1943, and September 29, 1943.
On September 17, 1941, at Sceptre, Saskatchewan, the appellant was convicted before a police magistrate of theft in that he "did steal one automobile coil of the approximate value of three dollars ($3.00), the property of one H---- S----, contrary to section 386 of the Criminal Code of Canada." Following his conviction the appellant received a suspended sentence of 6 months on recognizance. He was subsequently discharged from such recognizance.
While on its face the conviction appears to be of slight importance in connection with an application for temporary admission to the United States, that is not the only question involved. The record presents the issue of whether theft as defined by the Canadian statute involves moral turpitude and, if it does, then the excluding decision of the Board of Special Inquiry must be sustained, although discretionary action to admit temporarily is taken.
Larceny and theft, whether petty or grand, has uniformly been held to involve moral turpitude ( Tillinghast v. Edmead, 1929, 31 F. (2d) 81, C.C.A.-1; United States ex rel. Rizzio v. Kenney, 1931, 50 F. (2d) 418, D.C. Conn.) and it was determined in United States ex rel. Chartrand v. Karnuth, 1940, 31 F. Supp. 799, D.C.N.D.N.Y., that theft in Canada involves that element.
The words "involving moral turpitude" refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality ( Coykendall v. Skrmetta, 1927, 22 F. (2d) 120, (C.C.A. 2). Whether a particular crime involves moral turpitude is determined by standards prevailing in the United States (39 Ops. Atty. Gen. 95, 96).
In considering the rule it is not permissible to consider 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. If the crime as defined does not necessarily involve moral turpitude, the alien cannot be excluded because in the particular instance his conduct was immoral. Conversely, if the crime as defined necessarily involves moral turpitude, no evidence is competent to show that moral turpitude was not involved ( United States ex rel. Robinson v. Day, 1931, 51 F. (2d) 1922, C.C.A. 2).
If one statute defines several crimes, some of which involve moral turpitude and some of which do not, and the statute is divisible, it is permissible to ascertain by examination of the record of conviction whether the particular offense involved moral turpitude. The record of conviction means the charge (indictment), plea, verdict, and sentence ( United States ex rel. Zaffarano v. Corsi, 1933, 63 F. (2d) 757, C.C.A. 2).
Section 386 of the Canadian Criminal Code does not define the crime of theft. It provides the penalty for that crime. It reads:
Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals anything for the stealing of which no punishment is otherwise provided or commits in respect thereof any offence for which he is liable to the same punishment as if he had stolen the same.
2. The offender is liable to ten years' imprisonment if he has been previously convicted of theft.
Despite the allegation in the record of conviction, the appellant was not proceeded against by indictment and was not sentenced in pursuance of section 386 of the Criminal Code of Canada. He was tried summarily under the jurisdiction given to magistrates in the Province of Saskatchewan by section 777 (1) of the Canadian Criminal Code. Under this section a magistrate has absolute jurisdiction to try persons charged with theft of property, the value of which does not exceed $25. The punishment that may be imposed by a magistrate for such offense after summary trial is governed by section 778 of the Canadian Criminal Code which provides a maximum term of imprisonment in a common gaol or other place of confinement for a period not exceeding 6 months.
The crime of theft in Canada is now defined by section 347 of the Criminal Code of Canada as follows:
Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent,
(a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or
(b) to pledge the same or deposit it as security; or
(c) to part with it under a condition as to its return which the person parting with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion.
2. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it
3. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment.
4. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting.
Since the taking or converting must in every case be fraudulent, the definition includes the element of fraud. "Fraudulent" has often been used and defined in various meanings by textbook writers, courts, and others. At times, a relatively innocuous meaning has been assigned to the word. However, we are only concerned with the sense in which it is used in the Canadian Criminal Code and not elsewhere.
In Hammond v. The King, 55 Can. Cr. Cas. 301, at p. 303, the Canadian court said:
It is scarcely necessary to say that the words "fraudulently and without coinur of right" are essentials of the definition of theft or stealing. The fact of taking and appropriating or converting to one's own use, a thing capable of being stolen, constitutes theft only if it is done fraudulently and without colour of right.
Again in King v. Clark. 5 Can. Cr. Cas. 235, 240, the court, after recognizing that a fraudulent taking is essential to theft proceeded to determine whether the accused had committed a fraudulent taking by considering whether he was motivated by an intent to defraud. Crimes involving fraud have repeatedly been held to involve moral turpitude, within the purview of the immigration laws ( Mercer v. Lence, 1938, 96 F. (2d) 122, C.C.A. 10; Ponzi v. Ward, 1934, 7 F. Supp. 736, D.C. Mass.; Opinion of the Attorney General, In re H----, 56133/119, August 16, 1943).
Subdivision (a) of the Canadian definition of theft covers cases of taking with intent to deprive the owner of his property either temporarily or permanently. As application of the rule must be uniform ( U.S. ex rel. Mylius v. Uhl, 210 Fed. 860), the statute must be taken at its minimum unless its provisions are divisible, and if divisible — one or more of its provisions describing offenses involving moral turpitude, and others describing offenses not involving that element — the charge as shown by the record of conviction is controlling as to which provision of the statute is involved ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757). If the particular provision describes an act involving moral turpitude, other evidence may not be received to show that turpitude was not involved; and, on the contrary, if the charge relates to a provision which describes an act not involving moral turpitude, extraneous evidence may not be received to show that moral turpitude was in fact involved ( U.S. ex rel Robinson v. Day, 51 F. (2d) 1922). The dissenting opinion expresses the view that theft, as defined in Canada, may or may not involve moral turpitude, the determining factor being whether the offense was committed with intent to deprive permanently or with intent to deprive temporarily; if the former, moral turpitude is involved, and if the latter, it is not. However, the criminal procedure prevailing in Canada is such that the indictment does not show whether the taking was permanent or temporary; it need only allege that the accused "stole" or "did steal." Part XXV of the Canadian Criminal Code prescribes the general forms to be employed under the criminal code. Form 64 sets forth examples of the manner of stating offenses in indictments. Form 64 (b) charges theft as follows: "A stole a sack of flour from a ship called ---- at ---- on ----."
In George v. The King, 5 Can. Cr. Cas. 469, aff'd 8 Can. Cr. Cas. 401, the indictment charged that the defendant "did unlawfully steal one piece of Oregon pine wood." The defendant challenged the sufficiency of the indictment contending that it should have averred that it was done "fraudulently and without colour of right and with intent, etc." The court, in upholding the indictment, said:
The words "unlawfully did steal" in the charge mean and include everything necessary to constitute the offense of theft or stealing as defined by section 305 (now 347). They * * * mean that the stealing or theft which was committed was done fraudulently and without colour of right and with intent, etc.
It is not only legally sufficient to charge theft by alleging that the accused "stole" or "did steal," but under established practice in Canada little more is said in the information or indictment. We addressed an inquiry to the Secretary of the Canadian Legation in Washington requesting information as to whether a record of conviction for theft under section 347 (a) shows the taking to have been for a temporary or permanent purpose. The reply, dated January 4, 1943, contains the following paragraph:
The question has since been considered by the Department of Justice in Ottawa and the reply is that in charges laid under the foregoing section of the Criminal Code no distinction is made in cases where the theft involved is for a temporary purpose only and the information or indictment containing the charge and the conviction under this section exhibits no such distinction.
Since we could never determine that the offense was committed with intent to deprive permanently, we would be led, if the views of the dissent were followed, to the indefensible result that no conviction for theft in Canada, however serious, base, or depraved the offense might be, involves moral turpitude. We have in the past experienced difficulty in determining whether theft in Canada involves moral turpitude. As a consequence, our holdings have not been consistent. On April 9, 1943, in the case of H---- Q----, 56127/884, we held that the offense did involve moral turpitude. Subsequently, on June 15, 1943, we held that it did not in the case of E---- G---- W----, 56143/310. No uniform administrative course of action as to this offense has as yet been established. After reconsideration of the entire problem, we are convinced that the proper conclusion is reached by reverting to our original position taken in the Q---- case, supra. We think that (1) a fraudulent taking, (2) without colour of right, and (3) with the intent to deprive the owner of his property, involves moral turpitude in any case, whether the taking was temporary or permanent.
Attention, however, has been directed to the fact we have held that driving an automobile without the consent of the owner, in violation of statute, does not involve moral turpitude, and to hold that a conviction under the Canadian statute for a temporary taking does involve moral turpitude would be inconsistent with the rulings in the automobile driving cases. But Canada makes separate provision in section 285 (3) of its Criminal Code for the punishment of those who take another's motor vehicle without permission. This section of the Code is similar to those of Michigan (Act No. 328 Public Acts of 1931, sec. 414), Minnesota (Minnesota Statutes, sec. 2717-1), and Washington (sec. 2601-1, Revised Statutes of Washington), which we have held does not involve moral turpitude. We have already determined that the Canadian statute likewise does not involve moral turpitude ( In re T----, 56156/106). There would be no inconsistency in holding that a conviction for stealing an automobile prosecuted under section 347 of the Criminal Code of Canada does involve moral turpitude. For the courts of Canada have said of these two sections — the "joyriding statute" (sec. 285 (3)) and the theft statute (sec. 347) — the following:
A comparison of this section (285) (3)) and that one (347) defining theft shows that they deal with distinct offenses, * * * and that while the essential elements of the major one, theft, include all the elements necessary to secure a conviction under s. 285, yet an offender may be convicted of the minor one under the latter section without being liable under the former; e.g., s-s. (3) may be violated even though the "taking" of the car was not done "fraudulently and without colour of right," and one effect of s-s. (3) is to make what would otherwise be a civil trespass a criminal offense in the case of "any automobile or motor car." ( Rex v. Schmidt Edlung, 54 Can. Cr. Cas. 168; see also Rex v. Vanbuskirk et al., 35 Can. Cr. Cas, 203, 204; Hirshman v. Beal, 32 D.L.R. 680, 684; and Rex. v. Bernier et al., 74 Can. Cr. Cas. 384.
It is of more than passing significance to observe that Canada bases its distinction between the joy-riding statute and the theft statute on the absence of a fraudulent taking in the former and its essential presence in the latter. It is clear, then, that automobile "thefts" in Canada present no special problems. If a conviction is predicated on section 285 (3) of the Code, no moral turpitude attaches. On the other hand, if conviction is based upon section 347 of the Code, it follows that the court has found all the elements of theft present, including a fraudulent taking, and moral turpitude is involved.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant is applying for admission to the United States as a local border crosser;
(3) That the appellant is in possession of appropriate documents;
(4) That the appellant was convicted on September 17, 1941, at Sceptre, Saskatchewan, Canada, of the crime of theft of an automobile coil.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the offense committed by the appellant is a crime involving moral turpitude;
(2) That under section 3 of the Immigration Act of February 5, 1917, the appellant is inadmissible on the ground that he has been convicted of a crime involving moral turpitude, to wit: Theft of an automobile coil in Canada.
Other Factors: The appellant seeks admission as a temporary visitor for short periods of time. He is gainfully employed. He has never been arrested for or convicted of any crime other than the theft previously discussed. His conduct and character since his conviction appear to have been good. As recommended by the Central Office of the Immigration and Naturalization service, we believe that his temporary admission under the ninth proviso of section 3 of the Immigration Act of February 5, 1917, may properly be authorized.
Order: It is ordered that the appellant be admitted as a local border crosser during the period of the validity of his documents under the ninth proviso of section 3 of the Immigration Act of February 5, 1917, notwithstanding his inadmissibility as a person who has been convicted of a crime involving moral turpitude, to wit: Theft of an automobile coil committed in Canada in 1941.
The alien was convicted by a police magistrate of the Province of Saskatchewan on the charge that he "did steal one automobile coil of the approximate value of $3, the property of one Harold Seaman, contrary to section 386 of the Criminal Code of Canada."
"Theft or stealing" under the Canadian statute includes offenses which would not be so characterized in our law. The majority opinion points out, however, that under Canadian law the taking must be "fraudulent," and that fraud itself involves moral turpitude. On the other hand, it is urged in the dissenting opinion that "fraudulent taking" under Canadian law is merely synonymous with "unlawful or felonious taking"; and this appears to be supported by the authorities cited.
On the whole, it is quite apparent to me that a person may be convicted of theft in Canada when the real offense is not known by that name in our law and does not involve moral turpitude. The cases cited in the opinions of the Board indicate that this does actually happen. In these circumstances it is necessary to go beyond the statute and to consider such facts as may appear from the record of conviction or from the admissions of the alien, in order to determine whether the offense is one which under our law involves moral turpitude.
In any event I believe that the majority of the Board erred in concluding that the Board was precluded from exercising its independent judgment as to whether the crime for which the appellant was convicted involved moral turpitude and that it was required to decide this issue by a mechanical application of the definitions found in the Canadian statutes. I think the correct rule is that the Board is entitled to look beyond the statutes, to consider such facts as may appear from the record of conviction or the admissions of the alien and to reach an independent conclusion as to whether the offense is one which under our law involves moral turpitude. I therefore return the case to the Board of Immigration Appeals for a further consideration in the light of this opinion.
I agree with the opinion of the majority and join in it.
I wish to briefly point out two additional reasons why, it seems to me, the crime of theft as defined by the Canadian statute, viz, the taking fraudulently and without color of right the property of another with intent to deprive the owner thereof, either permanently or temporarily, involves moral turpitude.
First, the element of fraud is clearly present in the act of a temporary taking, although quantitatively to a lesser degree than in the case of a permanent taking. Nevertheless, qualitatively it is implicitly and inherently present in both acts. We are not concerned with the quantity of fraud included in the commission of the crime, the quality is the determinative factor. Fraud, whether the quantum be great or small, involves moral turpitude within the purview of our immigration laws and criminal statutes. Opinion of the Attorney General, In re H---- 56133/119, August 16, 1943; Mercer v. Lence, 1938, 96 F. (2d) 122, C.C.A. 10, and cases cited; Ponzi v. Ward, 1934, 7 F. Supp. 736, D.C. Mass. U.S. v. Tuttle (E.D. La.) 46 F. (2d) 342; U.S. v. Reimer (C.C.A. 2), 79 F. (2d) 513, 515; The Washington ( U.S. v. Reimer, S.D.N.Y.) 19 F. Supp. 719, 722; and 39 Ops. Atty. Gen. 221, 222. Likewise, petit larceny or theft has consistently been held to involve moral turpitude the same as grand larceny. The courts have made no distinction between the two crimes on account of the value of the property stolen in determining whether moral turpitude is involved. U.S. ex rel. Chartrand v. Karnuth, 1940, 31 F. Supp. 799 (D.C.N.D.N.Y.); U.S. ex rel. Rizzio v. Kenney, 1931, 50 F. (2d) 418, (D.C. Conn.); Tillinghast v. Edmead, 1929, 31 F. (2d) 81, (C.C.A. 1.).
Secondly, to hold that a temporary fraudulent taking without color of right is not a crime involving moral turpitude and that the taking must be permanent in order to constitute the defined crime of theft under the Canadian statute would be a pernicious and highly dangerous doctrine with far-reaching and very damaging consequences. Practically, it would lead to incongruous and anomalous results. It would authorize the temporary fraudulent taking without color of right of the property belonging to another and depriving the owner of the use and enjoyment thereof — for either a long or short duration of time — despite the fact that the statute denounces the act as the crime of theft. If such a course of conduct were followed extensively by a considerable number of persons in direct violation of the statutory inhibition, it would inevitably lead pro tanto to a state of lawlessness and anarchy. It would result in the owner being required contrary to statute to share, at least temporarily, his property with everybody else and basically to submit to a species of communism. Paradoxically, the legal status of the guilty persons responsible insofar as their admission to the United States and deportation under our immigration laws are concerned would be unaffected. We preclude such an illogical unfortunate result by holding that acts in violation of the Canadian theft statute are crimes involving moral turpitude.
It is my opinion that the appellant was not convicted of a crime involving moral turpitude. I am convinced that the majority opinion is based on erroneous hypotheses. In the first place, it proceeds on the theory that all so-called Canadian thefts contain the element of deceit or artifice; secondly, it rests on the conjecture that from the standpoint of moral turpitude no distinction can be made between serious crimes and minor offenses under the statute; and, finally, it pays lip service to the well-settled judicial and administrative doctrine that a statute must be taken at its minimum in determining the moral turpitude of a crime and then proceeds to accept the Canadian statute at its very maximum. The definition of theft in Canada permits and has resulted in convictions for mere civil trespass, unaccompanied by criminal or deceitful intent. Well established judicial precedents in the United States, the legislative history of the applicable Canadian statute, the reported cases under the statute, recent decisions of this Board interpreting the statute, firmly rooted immigration precepts, and the generally accepted definition of the crime of larceny, all require the conclusion that the crime under consideration does not involve moral turpitude.
Before proceeding to analyze the governing principles of law, it is advisable to summarize the facts in this case. The appellant testified that in 1941, when he was 17 years of age, he endeavored to negotiate the purchase of a motorcycle in the Province of Saskatchewan, Canada. He advised the prospective seller, then age 16, that the motorcycle was not in the proper working order and that he desired another coil, before making the purchase. Both boys then walked down the street to get another coil and as they passed a parked truck the prospective seller obtained a coil from the vehicle. The alien states that he was innocent of any complicity in the wrongful conduct, that the purchase was not consummated at the time, but that he was convicted of theft in view of the fact that he was 1 year older than the prospective seller, and he received a suspended sentence. The appellant's recital of these facts constituted the sole basis for his exclusion at the close of the first hearing on June 22, 1943. On September 29, 1943, the hearing was reopened and the record of his conviction was introduced in evidence.
Despite the allegation in this record of conviction, the appellant was not prosecuted by indictment and was not sentenced pursuant to section 386 of the Criminal Code of Canada. He was tried summarily before a police magistrate under the jurisdiction given to magistrates in the Province of Saskatchewan by section 777 (1) (c) of the Code. Under this section a magistrate has absolute jurisdiction to try persons charged with theft of property, the value of which does not exceed $25. The punishment that may be imposed by a magistrate for such offense after summary trial is governed by section 778 of the Code which provides that 6 months shall be a maximum term of imprisonment.
The alien has not admitted the commission of any crime and still maintains his innocence. He is therefore not excludable on the ground that he has admitted the commission of a crime. The question presented is whether the statute and the record of conviction support the charge that he has been convicted of a crime involving moral turpitude.
The conviction charges the alien with stealing or theft of one automobile coil of the approximae value of $3. The crime of theft in Canada is defined by section 347 of the Criminal Code of Canada. Insofar as is pertinent to the discussion of the issue raised herein, it provides:
Theft or stealing is the act of fraudulently and without colour of right taking or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent,
(a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; * * *
* * * * * * *
3. The taking or conversion may be fraudulent, although effect without secrecy or attempt at concealment.
4. It is immaterial whether the thing converted * * * was at the time of the conversion, in the lawful possession of the person converting. [Italics supplied.]
My opinion that the alien is not excludible by reason of his conviction under the statute is based on the following conclusion: 1. The Canailian statute is not a larceny statute but a statute including ordinary civil trespasses within its definition. 2. Moral turpitude only attaches to permanent deprivations of property and not to temporary asportations. The inclusion of temporary deprivations in the statute removes a violation under it from the class of offenses which involve moral turpitude. 3. The term "fraudulent" in larceny statutes and in the statute under consideration is used convertibly with "felonious" or "unlawful." It does not connote a taking by deceit or artifice, nor does the inclusion of this term in a definition of larceny justify a finding of moral turpitude. 4. In determining whether moral turpitude is involved herein, we are required as a matter of law to accept the statute at its minimum, and therefore find that the alien's offense does not involve moral turpitude. These conclusions will be discussed seriatum.
1. The Canadian statute is unique, if not totally foreign to our concept of Anglo-American criminal jurisprudence. Theft as defined in the Canadian statute differs materially from the common law definition of larceny. There is no requirement of criminal intent, asportation, nor the intent to deprive the owner of his property permanently. As predicted by the English Royal Commissioners, whose reports were made the basis of this legislation (see, infra p. 36), the statute is so broad that it has in theory and practice destroyed the important boundary between the crime of larceny and a mere civil trespass. The innocuousness of offenses under the statute and the unjust but logical result of the majority decision is illustrated by another case pending before this board ( M---- G---- O'N----, 56139/764 (now A-5918935).
Mrs. O'N---- is 19 years of age, is married to a native born citizen, a flight officer in the United States Army Air Forces, and a medical statement has been submitted certifying that she is pregnant. She was admitted to the United States in 1942 for a temporary period. In 1941, at the age of 17, she was convicted of theft after summary trial before a magistrate in the Province of Ontario. The testimony indicated that she borrowed a ring, valued at $50, from a friend, only to wear at a party and with the intention of returning it that night. This was done without her friend's knowledge. A boy at the party took the ring from the respondent and refused to return it. The alien notified the friend and both went to the police station where the alien was advised that if the boy were not found she would be charged with the loss of the ring. She was thereafter convicted and given a suspended sentence. The boy was found after the trial. The foregoing recital established a case of theft under the Canadian statute. If it constitutes proof of a crime involving moral turpitude, and I think it clearly does not, then her deportation will be mandatory. It will be noted that there was no intent to deceive, no criminal intent, and no wrong except, perhaps, a mere civil trespass. Nevertheless, the crime of theft was sustained in Canada.
In another case, now pending before this Board, that of A---- McI----, 56065/919 (now A-5443818), the alien was convicted of theft in Ontario and received a suspended sentence. His landlord's property in the room which he tenanted was placed under distraint. The alien, under the impression that his own property, valued at $2, was not affected, removed his belongings from the room. For this, he was found guilty of theft. The complaining witness subsequently signed an affidavit stating: "I did not at any time treat it as theft, nor did I intend to prosecute him. However, as he immediately admitted he had taken these small articles, the court had no alternative, having regard to the bailiff's seizure, but to accept his admission as a plea of guilty. It was certainly a very technical charge, and in talking to him afterwards, I am of the opinion that he was only too ready to admit he had taken the articles, but that he thought that the seizure only applied to the landlord's effects."
In the case of A---- A----, 56038/313, decided by this Board on August 7, 1943, a fifteen-year-old boy was charged in Canada with the theft of two pieces of firewood, valued at 20 cents. Although he might have been treated as a juvenile delinquent under the laws of Canada, he was convicted of theft and sentenced to a term of 2 weeks in a common jail. The police magistrate wrote afterwards that the boy's father was the real culprit. We refused to regard this conviction of theft as a conviction for a crime. We held that on our standards this would not be a crime at all.
In Rex v. Musgrave, 46 Can. Cr. Cas. 45 (1926), boys playing on a wharf amused themselves by throwing pieces of scrap iron, obtained without the owner's consent, at a bottle floating in the water. Although guilty of no deceit or criminal intent as defined by our laws, they were nevertheless found guilty of theft.
It will be noted, as an additional factor, in the instant case, and the case of M---- G---- O'N---- and that of A---- A----, supra that the aliens were of immature years at the time of their offenses. It is indeed questionable whether they can be treated as criminals judged by standards prevailing in the United States. (See A summary of Juvenile — Court Legislation in the United States by Breckinridge and Jeter (1920) p. 15.)
Crimes of this character were not comprehended within the classification of serious crimes at which our immigration laws were aimed. (See vol. I, Immigration Commission Report, S. Doc. No. 747, 61st Cong., 3d sess., 1910-11, pp. 34 and 45; S. Rept. No. 355, 63d Congress, 2d sess., 1914, p. 11.) These are not the dangerous criminals whom we are required to exclude or deport. These crimes and the crime in the instant case required no criminal intent, as defined by our standards. Canadian theft under the section in question is not theft at all. We cannot in good conscience, and as will be demonstrated hereinafter, we cannot as a matter of law, determine that these crimes involve moral turpitude.
2. Whether this particular crime involves moral turpitude is determined by standards prevailing in the United States. 37 Op. Atty. Gen. 293 (1933); 39 Op. Atty. Gen. 95, 96 (1937); 39 Op. Atty. Gen. 215, 220 (1938). Moral turpitude is said to be a vague term and therefore it would seem difficult to state any definition which would serve as an infallible guide for all cases. However, certain general principles have been consistently followed as accurate standards in the majority of cases. The lower court's opinion in U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S.D.N.Y., 1913), aff'd 210 Fed. 860 has been considered a controlling landmark in immigration law. It stands for the proposition that a crime must be its very nature and at its minimum, as defined by statute, involve an evil intent before a finding of moral turpitude would be justified. The test then, is whether the act is accompanied by a vicious or corrupt mind. Malicious intention or what is equivalent to such intention is the broad boundary between crimes involving moral turpitude and those which do not. (Opinion, Solicitor of Labor, No. 4/561, December 5, 1922). This criteria has been reaffirmed (No. 4/593, March 1, 1923) and adopted by the courts. U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (D.C.W.D.N.Y., 1929). In U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.A.A. 2d, 1931), it was said that: "* * * it is in the intent that moral turpitude inheres" and in U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204, 205, 206 (D.C.E.D. Pa., 1930), the court stated: "The moral turpitude of the offense springs from the intent * * *."
37 Op. Atty. Gen. 293, 296 (1933).
The element of common law larceny with which moral turpitude is associated is the intent to deprive another of his property permanently. This element is not a requirement of the Canadian statute.
In Reg. v. Holloway, 2 Car. K. 942, I Den. C.C. 370, 1849, Lord Denman stated:
If we were to hold that wrongfully borrowing a thing for a time, with an intention to return it, would constitute a larceny, many very venial offenses would be larcenies.
The eminent jurist, Oliver Wendell Holmes, Jr., at pages 70, 71 in his well-known book, The Common Law, aptly summarizes this problem as follows:
In larceny the consequences immediately flowing from the act are generally exhaused with little or no harm to the owner. Goods are removed from his possession by tresspass, and that is all, when the crime is complete. But they must be permanently kept from him before the harm is done which the law seeks to prevent. A momentary loss of possession is not what has been guarded against with such severe penalties. What the law means to prevent is the loss of it wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use without intending to deprive the owner of his property.
In 2 Wharton's Criminal Law (1932) section 1122, pages 1413-1435, the rule stated is that:
To constitute larceny, it is necessary that the goods should be taken feloniously, without the owner's consent. * * * For it should be remembered that not every taking of the property of another, without his knowledge or consent, amounts to larceny. To make it such it must be accompanied by circumstances which demonstrate a "fraudulent or felonious" intention to deprive the possessor permanently of the thing taken. This "fraudulent" or "felonious" intent (and the terms are used convertibly) is an intent without an honest claim of right, and with the expectation of benefit to self, to destroy, to take permanently from another goods which are his property.
In 2 Bishop's Criminal Law (1923), section 841, page 640, the requisite intent is described in these words:
The thief must intend what, if effectual, will deprive the owner of his entire ownership in the thing taken, not simply his possession thereof temporarily.
Clark and Marshall's Treatise on the Law of Crimes (1940), contains the following:
In larceny and robbery there must be a specific intent to permanently deprive the owner of the goods of his property therein. No other intent will do (at p. 74).
As the taking in larceny involves a tresspass, so the intent involves fraud. * * * even where there is a fraudulent intent, and the trespasser knows that the property belongs to another, the taking is not necessarily larceny. There must be, in addition to this, an intent to deprive the owner of his property, and to deprive him of it permanently (at pp. 425, 426).
It is well established in England and the United States, therefore that larceny is not committed in the absence of an intent to deprive the owner of his property permanently. It is solely for this reason that convictions under joy-riding statutes have been held to be free of moral turpitude.
Reg. v. Holloway, 2 Car. K. 942 (1849); Larceny: Intent Permanently to Deprive Owner, 99 Justice of the Peace and Local Government 139 (1935).
In 52 L.R.A. (N.S.) 1014 (1914) it is stated: "* * * it is the general rule, well established by the great weight of authority, that the taking of another's property for a temporary purpose with the bona fide intent of returning it, does not constitute the crime of larceny. Bailey v. State, 92 Ark. 216, 122 S.W. 497; People v. Stewart, 80 Cal. 129, 22 Pac. 124; People v. Brown, 105 Cal. 66, 38 Pac. 518; Robinson v. State, 113 Ind. 510, 16 N.E. 184; Stillwell v. State, 155 Ind. 552, 58 N.E. 709; Kelly v. State, 14 Ind. 36; Walklate v. Com. ___ Ky. ___, 118 S.W. 314; Smith v. Com. 129 Ky. 433, 112 S.W. 615; State v. Slingerland, 19 Nev. 135,7 Pac. 280, 7 Am. Crim. Rep. 338; State v. South, 28 N.J.L. 28, 75 Am. Dec. 250; Parr v. Loder, 97 App. Div. 218; 89 N.Y. Supp. 823, appeal dismissed in 180 N.Y. 531, 72 N.E. 1146, and in 182 N.Y. 509, 74 N.E. 1121; People v. Kenney, 135 App. Div. 380, 119 N.Y. Supp. 854; Mitchell v. Territory, 7 Okla. 527; 54 Pac. 782; McDaniel v. State, 33 Tex. 419; Smith v. State, ___ Tex. Crim. Rep. ___, 146 S.W. 547; Colwell v. State, ___ Tex. Crim. Rep. ___ 34 S.W. 615; People v. Flynn, 7 Utah, 378, 26 Pac. 1114; Reg. v. Trebilcock, Dears. B.C.C. 453, 4 Jur. N.S. 123, 7 Cox, C.C. 408; 27 L.J. Mag. Cas. N.S. 103, 6 Week. Rep. 281."
No general theft statute comparable to the Canadian statute has been discovered in any common law jurisdiction. It would appear that the only statutes in the United States which provide that a temporary asportation constitutes theft are those dealing with special subjects, as in the case of joy-riding legislation. See 32 Am. Jur. pp. 927, 940, 941, note 18.
In the case of B---- R----, 55394/709, the Solicitor of Labor decided on January 29, 1925, that driving away a vehicle without the owner's consent under the 1923 California statute (ch. 266, title X, sec. 146) did not involve moral turpitude. He stated, in part:
Is moral turpitude the essence of the offense created by the statute in this case? If its application were limited to cases which would by their nature necessarily constitute theft or stealing as those offenses were known at common law, the answer would doubtless be in the affirmative ( Bordeaux v. Davis, 58 Ala. 611, where an attempt to commit larceny was held to involve moral turpitude). But it is plain that the offense against the statute here discussed is equally complete whether it be with or without intent to steal. The deprivation of possession from the owner for a temporary period without intent to steal, such as by prankishness, is as great an offense as any other under the statute.
As indicated by the court in ex rel. Mylius v. Uhl, supra, an offense under the statute may involve moral turpitude, but moral turpitude is not the essence of the offense under the statute, for it is clear that in a given case the statute would be violated without the least element of moral depravity on the part of the one violating it.
On October 30, 1931, in the case of B---- M----, 55768/119, Bart W. Butler, as Acting Solicitor of the Department of Labor, ruled that operation of a motor vehicle without the owner's consent under section 2717-1 of the Minnesota statute did not involve moral turpitude for the reason that:
The statute under which the alien in this case was convicted is not a larceny statute which of necessity must include an intent to permanently deprive a person of something which he lawfully possesses * * *.
The views of the Solicitor and Acting Solicitor of Labor have been consistently followed by the Board.
In re D----, 56076/139 (July 15, 1941): In re T----, 56156/106 (October 9, 1943); In re B----, 56080/914 (October 28, 1943); In re W----, 56143/310 (June 15, 1943); In re F---- R----, 55795/434 (August 25, 1933); In re A---- N----, 55860/157 (March 20, 1935); In re L----, 55964/251 (now A-3384483); (1938).
In the case of L---- P----, 56017/465, Attorney General Jackson held on March 7, 1941, that an alien was not deportable because he did not admit all the elements of a crime involving moral turpitude. P---- admitted before a Board of Special Inquiry, "I did steal the money." The Attorney General said in part:
This is simply respondent's own conclusion. It is an admission that respondent took the money but the record is bare of evidence that he took it with criminal intent, * * *. Since respondent has not admitted all the elements of a crime involving moral turpitude it is my judgment he has not been proved deportable.
Obviously, the criminal intent to which reference was made was the intent to deprive the owner of his property permanently. Unless this element appears in the record of conviction, the statute, or the admission of the alien, the prerequisite to a finding of moral turpitude, is absent.
The Criminal Code of Canada, enacted in 1892, was founded principally on the English Draft Code of 1880. The latter was prepared by Royal Commissioners on Criminal Law whose reports are widely quoted by Canadian annotators in interpreting the various criminal sections of the statute. The Fourth Report of the Royal Commissioners dated March 8, 1839, contains the following comment at page 56:
55-56 Vict. ch. 29, sec. 305. The statute was amended without change in this provision in 1906. (R.S. chap. 146, sec. 347).
King v. Thompson, 21 Can. Crim. Cas. 80 at p. 97 (1911); Statement of Sir John Thompson, Canadian Minister of Justice and sponsor of the Canadian Criminal Code (debates of the House of Commons of Canada for the year 1892 at p. 1312; and Report of the Royal Commissioners, Sessional Papers, House of Lords of Great Britain for the years 1878-79, vol. XXXVI, p. 157.)
Crankshaw's Criminal Code of Canada (6th Ed.). See also Debates of the House of Commons and Senate of Canada for the year 1892, relating to the Criminal Code.
* * * a taking with intent to deprive the owner of the mere possession and use of a chattel for a time only, and not to deprive him of the property altogether, does not amount to the crime of theft.
And at page 52:
A law designed for the protection of the right of property would be far too general in its operation, were it to be extended to mere temporary privations of possession. In practice this would be to injure, if not destroy, the important boundary between the crime of theft and a mere civil trespass.
Nevertheless, Canada included mere temporary taking within its definition of theft. Neither the Senate nor the House of Commons of Canada debated this section of the code when the bill was being considered by their respective bodies sitting as a Committee of the Whole. A search of Canadian criminal cases has uncovered no reported judicial dissertation as to the reason for the inclusion of the word "temporarily" in the definition.
Rex v. Vanbuskirk, 35 Can. Cr. Cas. 903 (1921); Rex v. Bernier, 74 Can. Cr. Cas. 384 (1940). And note statement in Daly's Canadian Criminal Procedure (2d ed. 1915) that the Canadian Code abolished "larceny" and substituted "theft."
Although the majority now assert a contrary view, we previously determined that it was theft, under section 347, to temporarily borrow another's car without his consent. In re W----, infra. This is in conformity with the great weight of the Canadian cases and the most recent expressions of the Canadian courts. Rex v. Vanbuskirk, 35 Can. Cr. Cas. 203 (1921); Boyle v. Yorkshire Ins. Co. Ltd., 56 O.L.R. 564 (1925); and Rex v. Bernier, 74 Can. Cr. Cas. 384 (1940). The case of H---- Q----, 56127/884, which involved another section of the Canadian Code, and the case of U.S. ex rel. Chartrand v. Karnuth, 31 F. Supp. 799 (D.C.N.D.N.Y., 1940) are not in point. In both the elements of common law larency were present and assumed as established. In both the aliens admitted their guilt. The issue presented here was not considered in either of those cases, nor for that matter even involved.
We did, however, consider this section of the Criminal Code and the precise issue involved herein, in the case of K---- E---- G---- W----, 56143/310, decided, June 15, 1943, by an unanimous vote of this Board. We stated:
* * * the element which above all others must exist before the crime may be deemed one involving moral turpitude is that the property be taken with intent to deprive the owner of his property permanently.
* * * * * * *
Subdivision (a) of section 347 defines the intent that would be applicable to the appellant's case. It requires only that the accused intend to deprive the owner of his property temporarily or absolutely. To the extent that the deprivation may only be intended temporarily, the statute is in derogation and contrary to the common law. To the same extent it differs not at all from section 285 of the Canadian Criminal Code or from section 503 of the California Vehicle Code.
The Canadian Courts regard a conviction under section 347 of the Criminal Code of Canada as proper, although proceedings might also have been properly brought under section 285 of the Criminal Code. It is apparent then that a conviction under section 347 of the Criminal Code of Canada may or may not involve moral turpitude. * * * On the record we find that the appellant has not been convicted of a crime involving moral turpitude.
The W---- case represents the law which has been followed at all times by the Immigration Service and the Courts. Now several months after we announced our decision and followed well-rooted precedent, it is proposed to hold that all convictions under section 347 involve moral turpitude.
The Canadian legislature has created a class of offenses so broad as to abrogate the important boundary between theft and mere civil trespass. It has thereby removed a violation of the statute from the class of offenses which involve moral turpitude. It has always been held that statutes which include temporary takings within its criminal sanction do not involve moral turpitude. There is no authority to the contrary. There is no occasion or warrant for departing from this well-established doctrine and our most recent decision, controlling in the instant case.
3. The position of the majority that this is a crime of fraud is clearly untenable. Obviously, the statute does not require that all thefts be accomplished by deception. Theft by taking is one way in which the statute may be violated, theft by trick is another (See Crankshaw's Criminal Code of Canada, p. 409, 410.) Obtaining property by false pretenses, with intent to defraud, is made a separate crime (sec. 405).
In King v. Clark, 5 Can. Cr. Cas. 235, 240 (1901), actual fraud was not involved. The case can hardly be regarded as precedent for the proposition cited by the majority, and, if it is, recent cases overrule it. Thus, there is not the slightest basis for a contention that fraud was involved in the cases of Rex v. Bernier, 74 Can. Cr. Cas. 385 (1940); Henderson v. Northwestern Mutual Ins. Co., 43 Can. Cr. Cas. 217 (1925) or Rex v. Vanbuskirk 35 Can. Cr. Cas. (1921). There is not the slightest basis for a contention that deception was practiced in the instant case or in the case of M---- G---- O'N----, supra. It is evident that the use of the word, "fraudulently" in the Canadian statute and in larceny statutes does not connote an intent to defraud or an intent to practice deception.
In King v. George, 5 Can. Cr. Cas. 469, 474 (1901), aff'd 8 Can. Cr. Cas. 401 (1904), it was held that under section 305, now numbered 347, a "fraudulent" taking was synonymous with an "unlawful" or "felonious" asportation. The majority of the court said at page 474:
The words "unlawfully did steal" in the charge mean and include everything necessary to constitute the offense of theft or stealing as defined by sec. 205 (now sec. 347). [Italics supplied.]
That the words "fraudulently," "feloniously," and "unlawfully" are used convertibly is further borne out by the Fourth Report of the Royal Commissioners (1839), page 52, which states:
It is further observable that the intent essential to the offense must extend to the fraudulent appropriation of the whole property, and that the mere intent to deprive the owner of the temporary possession only is not sufficient to constitute the offense. For although, under particular circumstances, a fraudulent privation of possession may justly be made penal, such an offense cannot, without great inconvenience, be included within so general a predicament as that of theft.
And on pages 27 and 28 of the 1879 report, they said:
We have therefore defined theft in such a manner as to put wrongful taking and all other means of fraudulent misappropriation on the same footing.
See also excerpts from Fourth Report of Royal Commissioners in Michael Wechsler Criminal Law and its Administration, (1940) p. 401.
Crankshaw's Criminal Code of Canada (6th Ed.) at page 406 contains the following comment:
* * * theft, as a general term, includes not only every thing and every act amounting to larceny under the common law, as ONE of the different ways in which the offense can be committed, but all other fraudulent conversions and misappropriations of any article of personal property as ANOTHER method of committing theft; the essential ingredient of larceny at common law-namely, the taking and carrying away of the thing out of the owner's possession and against his will-being no longer necessary, * * *.
In Clark and Marshall, supra, at pages 425 and 426, it is stated that "a fraudulent intent" is comprehended within the term "felonious intent."
It is clear that the terms "felonious," "unlawful," and "fraudulent" are used convertibly in theft statutes. 2 Wharton's Criminal Law (1932) sec. 1122, pp. 1431, 1432; 32 Am. Jur. 896. In American and Canadian criminal jurisprudence, therefore, the use of the word "fraudulently" is not synonymous with the intent to defraud or deceive which has been held to involve moral turpitude.
"Crimes constituting fraud seem to be looked upon as involving moral turpitude within the meaning of the immigration statute." (39 Op. Atty. Gen. 215, 222 (1938)).
4. The majority feel that they are unable to cope with the problem of distinguishing between the serious and the nonserious crimes under this statute, between those that involve moral turpitude and those which do not. They, therefore, conclude that by administrative fiat they will find that all crimes under the statute involve moral turpitude. This approach is contrary to law.
In the first place, the courts, the Immigration Service, and this Board have at all times applied a rule which is the exact converse. We have always said that where a conviction under a statute may not involve moral turpitude and the record of conviction does not affirmatively establish that moral turpitude is involved, the alien cannot be excluded or deported for his crime. Judicial precedents and decisions of this Board are legion where it has been ruled that no moral turpitude is involved if the serious and nonserious crimes under a statute cannot be separated or distinguished.
Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien can not be deported * * * ( U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2d 1931)).
If a crime does not in its essence involve moral turpitude, a person found guilty of such crime cannot be excluded. * * *
The crime of publishing a criminal libel does not necessarily involve moral turpitude. It may do so, but moral turpitude is not the essence of the crime. U.S. ex rel. Mylius v. Uhl, 210 Fed. 860, 863 (C.C.A. 2d, 1914), affirming 203 Fed. 152 (S.D.N.Y. 1913). See also U.S. ex rel. Zaffarano v. Corsi, 63 Fed. (2d) 757 (C.C.A. 2d. 1933); 37 Op. Atty. Gen. 293, 295; In re S---- B----, 56018/361 (decision of the Attorney General dated May 27, 1941); In re D----, 56075/273 (1941); In re R----, 55394/709 (1925).
The crime defined by the statute in the instant case may include a mere civil trespass, a temporary borrowing of another's property without mens rea — offenses albeit, but those in which criminal intent is not present according to standards in the United States. A violation of the statute does not necessarily involve moral turpitude. On this record, therefore, we are required to find, as a matter of law, that moral turpitude is not involved.
Secondly, the majority acknowledge that a conviction under a statute must necessarily involve moral turpitude and that the statute must be taken at its minimum before a deportable or excludable offense has been established. However, because of an alleged difficulty in applying this rule to the Canadian statute, they determine as a matter of policy, to disregard the law and exclude those convicted of venial offenses. As an administrative tribunal, we are required to administer the law uniformly. U.S. ex rel. Mylius v. Uhl, supra. We cannot apply one rule of law to the Canadian statute and another to statutes in other jurisdictions, nor can we depart from well-established rules of law in individual cases. As a matter of policy and as a matter of law, we cannot disregard the law in this case.
Thirdly, the choice is not between holding that all thefts under this section involve moral turpitude or a ruling that all do not. In conformity with our past decisions of recent date, thefts in Canada may or may not involve moral turpitude. If the full record of conviction composed of the complaint, the indictment or information, the plea or answer, the verdict or judgment, and the sentence, indicates that a common law larceny has been committed, we are required to find that moral turpitude is involved ( Zaffarano v. Corsi, supra). In the instant case, the proceeding was initially based on the admission of a crime and only the judgment was introduced later. We do not have the full record of the conviction. However incomplete an indictment or information might be in Canada, we cannot say that the full record of conviction will not adequately describe the offense in order to permit a determination as to whether common law larceny or mere civil trespass was involved. The fears of the majority have not materialized in the past and now they are merely speculating as to some case which may possibly be presented in the future. Without difficulty, we were able to conclude recently, in the case of Re M----, 56156/413 (December 3, 1943) that theft from the person, which is regarded as a serious crime of Canada ( Reg. v. Conlin, I Can. Cr. Cas. 41 [1897]; Daly's Canadian Criminal Procedure [1915] p. 401) must comprehend an intent to deprive the owner of possession permanently and involves moral turpitude.
Fourthly, aliens seeking entry into our borders are carefully interrogated, first by consular officers and then by immigration officials at our borders. An admission by them of the elements of common law larceny will result in their exclusion from the United States.
Finally it should be observed that section 347, which is involved herein, is a general catch-all provision of the Canadian Code. Almost all of the cases presented to this Board under this section involved petty offenses which were tried in summary fashion before a police magistrate whose records were incomplete and sketchy. The offenses were not only petty but they also failed to establish a criminal intent. Serious offenses are described in other portions of the Code. (Theft from the persons (379); theft in a dwelling (380); theft from ships (382); theft on railways (384); theft from mails (364); theft by agent (355) and see other sections from 350-384.) We cannot assume that the full records of conviction in the supreme courts of Canada for serious crimes will contain such fragmentary information. We are not presently concerned with a serious crime nor with the interpretation of other sections of the Canadian Code covering serious crimes. In the instant case, and that of M---- G---- O'N----, 56139/764, supra, (now A-5918935), we can only say that the aliens were found guilty and received suspended sentences for petty civil trespasses and that the records do not supply the elements of common law larceny. We may not go outside the records of conviction in these cases, and if we did, it would indicate that the aliens were persons of immature years and of good character, who were not guilty of any crime at all.
It should be noted that if the alien's crime were stretched, without legal warrant, into a petty larceny, the view has been forcefully expressed that not all petty larcenies involve moral turpitude. Lord Bacon said that it is not even larceny to steal viands to satisfy hunger (Bacon, Law Tracts, 2d Ed. (1741) Reg. 5, p. 55). Yet this would generally be considered a crime although the act itself would not indicate moral turpitude. Judge Thomas in U.S. ex rel. Rizzio v. Kenny, 50 F. (2d) 418, 419 (D.C. Conn., 1931) recognized that larceny in some circumstances did not involve moral turpitude. In Tillinghast v. Edmead, 31 F. (2d) 81, 84 (C.C.A. 1st, 1929), Judge Anderson said in a dissenting opinion: "It seems to me monstrous to hold that a mother stealing a bottle of milk for her hungry child, or a foolish college student stealing a sign or a turkey, should be tainted as guilty of a crime of moral turpitude." In the lower court opinion, Judge Morton said ( 27 F. (2d) 438, at 439): "While there is authority that all larceny involves moral turpitude * * * I am not prepared to agree that a boy who steals an apple from an orchard is guilty of `inherently base, vile, or depraved conduct.' Where the larceny is petty, I think that the circumstances must be inquired into." In a discussion with reference to petty offenses and moral turpitude, Mr. Prichard, special assistant to the Attorney General, said in a memorandum dated April 5, 1941, in the case of Re G----, 56040/601: "* * * in connection with some offenses at least, doubt should be resolved against exclusion of deportation upon this ground. Certainly it would seem harsh and oppressive to hold that a crime for which only a fine or a suspended jail sentence was involved is the proper basis for excluding from the United States one who seeks admission."
I have therefore concluded as a matter of law and, as a matter of simple justice, that we are required to find that the offense committed by the alien in the instant case and that charged against M---- G---- O'N---- do not carry the stigma of moral turpitude. Mrs. O'N---- should not be deported and the alien in this proceeding should be admitted without the exercise of the ninth proviso.
As a dissent has been recorded, in accordance with the provisions of section 90.12, title 8, C.F.R., the case is certified to the Attorney General for review of the Board's decision.