56033/458
Decided by the Board May 20, 1942.
Crime involving moral turpitude — Prison breach (New Jersey).
Prison breach in violation of section 52-12, New Jersey Compiled Statutes of 1924, does not involve moral turpitude.
CHARGES:
Warrant: Act of 1917 — Sentenced more than once for crime involving moral turpitude — breaking prison; larceny and conspiracy to commit larceny.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: Warrant of arrest on the above charge was issued July 11, 1940, and served August 27, 1940. A hearing was conducted at the New Jersey State Prison on the latter date. The respondent waived representation by counsel. The presiding inspector found that the evidence supported the warrant charge, and he recommended deportation.
On October 21, 1941, the case was reopened to lodge against respondent the charge that he has been sentenced more than once to imprisonment for a term of 1 year or more for commission subsequent to entry of a crime involving moral turpitude, to wit: robbery, larceny, and conspiracy to commit larceny. Authority was also given to conduct such further hearing as might be appropriate to the case. On March 10, 1942, a reopened hearing was conducted, after which the presiding inspector again recommended that the alien be deported on the warrant charge.
The matter is now before this Board for review and decision.
DISCUSSION: Respondent testified that he was born on July 29, 1893, in the city of Komarno, State of Grodek, formerly Austria, then Poland, and at the time of the testimony, Russia. Respondent is married. He testified that he last entered the United States as a passenger on the S.S. Kaiser Wilhelm II in March 1914. This entry cannot be verified.
[There were presented] two indictments of respondent for the crimes of larceny and conspiracy to commit larceny. The former crime is alleged to have been committed in Elizabeth, N.J., on May 11, 1938, the latter in the same city on April 14, 1938. [There was also presented] a copy of the conviction of respondent for the two crimes. He was convicted on June 8, 1939, and was sentenced to imprisonment for a term of 2 to 3 years. Respondent admits that these records refer to him. Since the respondent was sentenced only once for both crimes, he would not be subject to deportation on the ground that he has been sentenced more than once for larceny and conspiracy to commit larceny.
[Also presented were] copies of the complaint and judgment of conviction of respondent for the crime of breaking prison, committed July 1, 1928. Respondent admits that these records refer to him.
The Solicitor of Labor in a memorandum dated April 29, 1926, in which he defines certain crimes and expresses an opinion as to which involve moral turpitude, has defined escape as, "the loss of the lawful custody of a prisoner, voluntarily or negligently suffered, and departure of a prisoner from lawful custody, without force, before discharged by due process of law." He adds, "escape takes place without force; prison breach with violence; rescue through the intervention of a third party." It is concluded, "In some cases, therefore, this offense may involve moral turpitude and in others would not."
In Case No. 55865/921, the Board of Immigration Appeals held that the crime of feloniously escaping from prison as defined by the New York Penal Law, involved moral turpitude, where the indictment charged that the person had escaped with "force and arms." In that decision the Board followed the case of United States ex rel. Castiglione v. Gribble, 55558/59 (1934), in which distinction was drawn between escapes by force or fraud and mere escapes. (Memorandum decision, 70 F. 2d 1022). This view was again followed in Case No. 55913/488. In Case No. 55911/687, however, it was held that an escape, where the offense was not described in the complaint or judgment as jailbreaking, and where there was no allegation that the escape had been accomplished by force or fraud, did not involve moral turpitude.
In the present case the complaint is for breaking prison and alleges:
That one P---- Z----, alias P---- C---- of Bergen Jail, did on the 1st day of July break prison and did then and there escape from the custody and control of the sheriff of the County of Bergen, having been convicted of a crime and sentenced to jail in said County of Bergen, etc.
The statute under which respondent was convicted (New Jersey Compiled Stat. Cum. Supp. 1924) defines the offense as follows:
52-12 Breaking Prison. 12. Any person who, being imprisoned for any crime, or in the custody and control of the sheriff, having been indicted for or convicted of any offense, or sentenced to imprisonment on such conviction, or committed or detained in such jail on any criminal charge, or held awaiting extradition shall break prison and escape, or escape from the custody and control of the sheriff, or shall break prison, although no escape be actually made, shall be guilty of a misdemeanor.
It will be observed that the offense in this case is described as breaking prison, and it is alleged that respondent broke prison and escaped. Under the statute he might have been charged only with escape. Referring back to the distinction drawn by the Solicitor of Labor between escape without force and prison breach with violence, it might be inferred that the respondent is charged with having gotten out of prison by means of force and violence. A generalized distinction based upon the name by which the offense is called cannot be applied to all statutes on this subject, however. As indicated by some of the cases referred to above, persons were charged with having "escaped" with force and arms or by force or fraud. Section 2: 126-6 of New Jersey Statutes Annotated (1937) is entitled "Persons escaping or attempting to escape," and provides:
Any person imprisoned or detained in any place of confinement, or being in the lawful custody or control of any penal or correctional institution or of any officer or other person whatsoever, upon any charge, indictment, conviction, or sentence for any crime, or upon any writ or process in any civil action or proceeding, or to await extradition, who shall by force or fraud escape or attempt to escape from such place of confinement or from such custody or control, or shall leave the building or grounds of such place of confinement without the consent of the officers in charge thereof, shall be guilty of a misdemeanor.
The earlier statute, under which respondent was convicted, entitled Breaking Prison, did not require that there be force or fraud. Apparently then whether or not the offense is described as "escape" or "prison breach" does not determine the presence or absence of force or fraud. In Randall v. State, 53 N.J.L. 488 (1891), which involved an indictment for prison breach, the court said:
The proof was, that the plaintiff, being in the corridor of the jail, with a wooden key unlocked a padlock which fastened a door between the corridor and one of the cells, and thence escaped. His counsel insists that this is not breaking.
Although it is said an actual, as distinguished from a constructive, breaking is necessary to the crime of prison breach, nevertheless we think that any breaking which has been adjudged actual with respect to other crimes should be deemed sufficient for this offence. The same expression used in the same branch of the law should denote the same idea, unless there be good reason for a distinction. In burglary, the unlocking and opening of a house door for the purpose of entry is actual breaking. 4 Bl. Com. 223. So, we think, the unlocking and opening of a prison door for the purpose of escape is actual breaking in the offence of prison breach.
The breaking in prison breach may, it appears, be purely technical involving no actual force or violence. We cannot regard a prisoner's unlocking and opening a prison door to escape as "an act of baseness, violence, or depravity." We do not believe that such an offense involves moral turpitude. Where a statute is sufficiently broad to include an offense that does not involve moral turpitude, a conviction thereunder should not be made the basis of deportation. United States ex rel. Zaffarano v. Corsi, 63 F. 2d 757 (C.C.A. 2d, 1933).
In regard to the robbery referred to in our former decision, the evidence at the reopened hearing established that the respondent had been arrested for robbery but was convicted of obtaining money under false pretenses, and was sentenced to 6 months' imprisonment. This offense, committed subsequent to respondent's last entry would, therefore, not be a basis for deportation under section 19 of the Immigration Act of 1917.
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 of Austria, of undetermined citizenship;
(2) That he last entered the United States in March 1914;
(3) That respondent was convicted in New Jersey of the crime of breaking prison, committed July 1, 1928;
(4) That on June 8, 1939, respondent was convicted in New Jersey for the crimes of larceny and conspiracy to commit larceny, committed on May 11, 1938, and April 14, 1938, respectively.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the crime of breaking prison as defined by section 52-12, New Jersey Compiled Stat. Cum. Supp. 1924, does not involve moral turpitude;
(2) That under section 19 of the Immigration Act of 1917 the respondent is not subject to deportation on the ground that he has been sentenced more than once to imprisonment for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: breaking prison, and larceny and conspiracy to commit larceny.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings closed.