Opinion · United States Board of Immigration Appeals
IN THE MATTER OF O----, 4 IN Dec. 301 (BIA 1951)
IN THE MATTER OF O----. In EXCLUSION Proceedings., 4 I. & N. Dec. 301 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1951)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1951-12-19
- Topic
- general
IN THE MATTER OF O----, 4 IN Dec. 301 (BIA 1951) IN THE MATTER OF O----. In EXCLUSION Proceedings. A-7463281, A-7463282, and A-7463283Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Central Office March 15, 1951Decided by Board December 19, 1951 Crime involving moral turpitude — Foreign — Germany — Riot accompanied by assault of an official — Assault of official in the lawful exercise of his office. (1) The crime of participation in riot in violation of section 115 of the German Criminal Code, accompanied by an assault of an official in the lawful exercise of his office in violation of section 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense.
Citator
UpLaw has not yet analyzed IN THE MATTER OF O----, 4 IN Dec. 301 (BIA 1951). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF O----,4 IN Dec. 301(BIA 1951)
IN THE MATTER OF O----. In EXCLUSION Proceedings.
A-7463281, A-7463282, and A-7463283
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Central Office March 15, 1951
Decided by Board December 19, 1951
(1) The crime of participation in riot in violation of section 115 of the German Criminal Code, accompanied by an assault of an official in the lawful exercise of his office in violation of section 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense.EXCLUDED:
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Rioting (principal applicant).
Act of 1924 — Not preference quota immigrants as specified in visas (accompanying applicants).
BEFORE THE CENTRAL OFFICE
(March 15, 1951)
(March 15, 1951)
The principal applicant's inadmissibility is predicated upon his conviction by a Summary Military Court at Augsburg, Germany, on March 28, 1947, of the crime of rioting, for which he received a sentence of 60 days. The pertinent portion of the Extract of Court Record reads as follows:
1st — Violation of Military Government Ord. I, article II, section 43, and the German Penal Code 360.8 (refusing to give information to a competent official).
In that A---- O----, Ukrainian, did at Augsburg, on 18 March 1947 refuse to give information to a competent official concerning his identity, to wit: ThePage 302accused refused to give information to a German policeman concerning his identity and to show his identification papers.
2d — Violation of Military Government Ord. I, article II, section 43, and German Penal Code 115, section 2 (taking part in a public riotous gathering and assaulting a German policeman in the lawful exercise of his office).
In that A---- O----, Ukrainian, did at Augsburg, on 18 March 1947 take part in a public riotous gathering and use force and threats against a German policeman in the lawful exercise of his office, to wit: On 18 March 1947.
As will be noted, only the second charge was used as the basis for the finding of inadmissibility. Section 115 of the Statutory Criminal Law of Germany provides:
Whoever takes part in a public riotous gathering at which one of the offenses mentioned in sections 113 and 114 is committed by the gathering shall be punished for riot by imprisonment for not less than 6 months.
The ringleaders as well as those rioters who have committed one of the offenses specified in sections 113 and 114 shall be punished by confinement in a penitentiary not to exceed ten years; police surveillance may also be ordered. If there are extenuating circumstances, imprisonment for not less than 6 months may be imposed.
In deciding the issue presently before us for consideration it is important to note that the male appellant was not charged with and has not been convicted of assaulting an official engaged in the lawful exercise of his office, a separate and distinct offense under section 113 of the German law. This appellant stands convicted only of taking part in a public riotous gathering at which he assaulted a German policeman while that official was engaged in the lawful exercise of his office, an offense under section 115 of the German law. It is equally important to note that this appellant was not convicted of an offense of simple riot alone or of unlawful assembly since such offense falls not within section 115 but within section 116 of the German law. There is no offense under section 115 unless and until an offense mentioned in section 113 or 114 is committed during the riot. The description of the offense in the Extract of Court Record establishes that only section 113 is applicable here with regard to the offense under section 115. The pertinent part of that section states:
Whoever, with force or threats of force, resists an official (Beamte) whose duty is to execute the laws, orders, and decrees of administrative authorities, or the judgmments and orders of the courts while such official is engaged in the lawful exercise of his office, or whoever assaults such official while he is engaged in the lawful exercise of his office, shall be punished by imprisonment from 14 days to 2 years.
Accordingly, while we are not called upon at this time to determine whether on the facts here presented an offense under section 113 would involve moral turpitude, it is believed that should such offense involve moral turpitude, it will be a factor to be considered in determining whether the offense of which this appellant was convicted is one involving moral turpitude.Page 303
The Solicitor of Labor in a memorandum dated April 29, 1926, classifying crimes generally, was of the opinion that the offense of "rioting" might involve moral turpitude. At the same time, without comparison except as to the offense of an "affray," as to which offense the distinction was noted that an "affray" differed from a "riot" in not being premeditated, the Solicitor was of the opinion that the kindred offenses of "affray," "public disorder (disorderly conduct)," "breach of the peace," and "unlawful assembly" were not crimes involving moral turpitude.
The offense of "riot" has commonly been defined as a tumultuous disturbance of the peace by three or more persons assembled and acting with a common intent either in executing a lawful private enterprise in a violent and turbulent manner to the terror of the people, or in executing an unlawful enterprise in a violent turbulent manner.U.S.v.Fenwick,25 Fed. Cas. No. 15086, 4 Cranch, C.C. 675;U.S.v.Stewart,27 Fed. Cas. No. 16401-a Hayw. H. 280. The gist of the offense is its tending to provoke a breach of the peace. "Riot" involves the execution of an agreement, express or implied between three or more persons to commit an assault, or battery, or a breach of the peace, through (1) unlawful assembly; (2) intent mutually to assist against unlawful authority and (3) act of violence. The intention which is generally an element of the offense of "riot" is the intent to join in, or encourage, the acts which constitute the riot; namely, the assembly, violence, turbulence, and the act violently and turbulently performed. The violent and turbulent enterprises of bodies of men have uniformly been considered as dangerous to the rights of other citizens.
Since the Solicitor was of the view that the offense of "rioting" might involve moral turpitude, it is difficult to conclude that a statute which punishes a rioter where in the course of the riot an official engaged in the performance of his duties is assaulted, is not one involving moral turpitude. This appears to be especially so where the statute in question does not punish the mere riot itself. The conclusion that such statute is one involving moral turpitude would find support if it is concluded that the subsidiary act of assaulting the official, which is itself punishable under another section of the law, is an offense involving moral turpitude. Consideration will now be given to that aspect of the case.
It will be observed that section 113 of the German law concerns two distinct acts which it denounces as criminal: (1) Resisting an official; and (2) assaulting an official in the lawful exercise of his office.
The offense of "resisting an official" under section 113 of the German Criminal Code was under consideration by the Board of Immigration Appeals inMatter of S----,A-7476137 (September 12, 1950). In considering whether resisting arrest involves moral turpitude, the BoardPage 304of Immigration Appeals determined that the proper test was to consider whether resisting arrest accomplished by the least imaginable force, involved moral turpitude. In concluding that the offense of "resisting" under the statute in question did not involve moral turpitude, the Board stated:
It is to be noted that section 113 of the German Criminal Code requires no specific intent. The adult male had committed a petty offense and the resistance offered the arresting officer by the male appellant apparently was only a token resistance, such as an unwillingness or a reluctance to accompany the police officer to the police station.There is nothing inthe record to show that the arresting officer wasassaulted or that he suffered any bodily injury whenhe arrested the adult male appellant on December 3,1948.He maintained his arrest. It is true that the charge sheet filed by the arresting officer on December 8, 1948, contains the words "by force and violence" but it is silent as to the nature or character of the force and violence, if any. It may have been that the resistance offered by the male appellant was passive rather than active. That there were extenuating circumstances surrounding the adult male appellant's arrest and conviction under section 113 of the German Criminal Code is borne out by the fact that he was tried in the magistrate's court and the light sentence imposed by the senior magistrate for both offenses is further evidence that the appellant's crime of resisting an officer in violation of the aforementioned section of the German Criminal Code was not considered serious. [Italics supplied.]
Where a statute such as the one we are now considering is broad enough to include acts which do not involve moral turpitude, we must hold that a violation thereof does not involve moral turpitude although acts which may involve moral turpitude are also covered by the statute.U.S. ex rel. Myliusv.Uhl,210 Fed. 860. As we have pointed out, the statute covers acts of a very minor nature, and the force offered to an arresting officer could be caused by the momentary reaction to the arrest rather than a deliberate, calculated resistance to law and order. We conclude, therefore, that the crime which the adult male appellant committed on December 3, 1948 (violation of sec. 113. German Criminal Code) and for which he was convicted on December 9, 1948, is not a crime involving moral turpitude. Accordingly, the criminal ground upon which the adult male appellant was found inadmissible is not sustained.
The crime under consideration in the instant case concerns that portion of the statute which comprehends the offense of assaulting an official in the lawful exercise of his office. This offense has not heretofore been the subject of an adjudication with regard to the immigration laws. It is the view of this Service that the decision of the Board of Immigration Appeals inMatter of S----(supra), is not dispositive of the issue presently before us except to the extent that that decision warrants the inference that an assault upon an arresting officer as disinguished from a resistance to an arrest would involve moral turpitude in view of the sentence underscored above.
With respect to the offense of an assault committed upon a police officer there is one court decision and several administrative decisions. In the case ofCiambelli ex rel.Maranciv.Johnson,12 F. (2d) 465(D.C. Mass. 1926), the district court held that, where a police officer was assaulted during an affray in which several persons participated,Page 305under the facts presented in the case before the court, the offense was not one involving moral turpitude. In that case, however, the Court stated:
If, on the other hand, one deliberately assaulted an officer with a dangerous weapon and with felonious intent or for the purpose of interfering with the officer in the performance of his duty,theattendant circumstances showing an inclination towardlawlessness,the act might well be considered as one involving moral turpitude. [Italics supplied.]
In connection with that case, it is important to note that in the jurisdiction in which the offense was committed there was no special statute covering assaults upon police officers, such assaults being chargeable under the assault section applicable to persons generally. It is the view of this Service that a riot in the instant case constitutes "the attendant circumstances showing an inclination toward lawlessness" in the commission of the assault by this appellant which under the court decision referred to constituted an act which "might well be considered as one involving moral turpitude."
InMatter of M----,56156/116, B.I.A. (1944) the Board of Immigration Appeals had before it for consideration the Canadian Statute relating to assaults upon police officers. That statute had previously been under judicial scrutiny and the conclusion reached that a conviction thereunder could be obtained notwithstanding that the accused did not know that the person assaulted was a police officer. Because of such judicial constructions the Board of Immigration Appeals concluded that statute was not a crime involving moral turpitude. That decision was followed inMatter of S----,A-2714805, B.I.A. (1946);Matter of C----,A-6314100, C.O. (1946); and inMatter ofH----,55911/539 C.O. (1948).
On the basis of the decision of the Board of Immigration Appeals inMatter of M----,(supra), and the later cases similarly adjudicated, the inference is warranted that had the Canadian statute required for conviction that the accused was aware of the fact that the person assaulted was a police officer engaged in the performance of his duties, the offense would have been held to involve moral turpitude. If this were not so, there would have been no need for the Board of Immigration Appeals to discuss and to predicate its findings on the judicial holding that the element of knowledge was not an element of the offense.
Accordingly, if the portion of the statute presently before us for consideration likewise requires no knowledge on the part of the accused that the person assaulted is a police officer in the performance of his duty in order to obtain a conviction, then it must be concluded that this statute like the Canadian statute is not one involving moral turpitude. Conversely, if it be found that under the German law a conviction under the statute in question may be obtained only if the accusedPage 306knows that the person assaulted is a police officer engaged in the performance of his office, then the conclusion is warranted that the offense is one involving moral turpitude.
In order to obtain the necessary information concerning the German law and its interpretation in the courts of that country the Library of Congress was requested to ascertain and advise:
whether under German law it is necessary to establish for conviction that the defendant knew at the time of the resistance or assault that the person assaulted was an enforcement officer engaged in the performance of his duties or whether a conviction can result even where the defendant had no such knowledge at the time of the assault.
In reply to this inquiry a memorandum was prepared by members of the Foreign Law Section of the Library of Congress L.T.O.C. which, in pertinent part, stated as follows:
The text of section 113 does not offer a clear answer to the inquirer's question whether or not under German law it is necessary to establish, for conviction under this section, that the defendant knew at the time of the resistance or assault that his victim was an enforcement officer engaged in the performance of his duties.
The well-known commentaries on German criminal law contain the following comments:
1. Schonke,Strafgesetzbuch, Kommentar,3d ed., Munich, 1947:
"Page 171. A distinction must be drawn between the factual elements of a crime as established by statute, on the one hand, and the conditions which form the prerequisites for punishment for this crime, on the other. These conditions are the circumstances making the crime punishable although they do not belong to the definition of the crime. * * * In individual cases it is doubtful and disputed whether a circumstance forms a factual element of the crime or a prerequisite for its punishment; there is no general solution to that problem, but each individual legal clause must be analyzed. * * * It is disputed, in particular, whether in section 113 the legality of the official act is a factual element of crime or a prerequisite for its punishment. * * *
"The differentiation is of special significance because the intent (required for punishment) does not need to refer to circumstances forming the prerequisite for punishment.
"Page 270. Intent is required (for punishment) as a mental element of the crime (under sec. 113)doluseventualis(indirect intent) is sufficient. The perpetrator must know or take the risk that the person in question is an officer and that the perpetrator resists with force the performance of an official act. * * *
"The legality of the official act is not a factual element of the crime but a prerequisite for its punishment and the intent (required for punishment under Section 113) does not necessarily extend to the knowledge of legality (decisions of Reichsgericht — German Supreme Court — in Criminal Cases, vol. 55, p. 166; vol. 60, p. 342; vol. 72, p. 301; decision reported in Deutsche Justiz, 1942 p. 1782; Olshausen's commentary, note 12; Schwarz's commentary, note 4 to section 113 (seeinfra,4)). If, on the contrary, many legal writers require the knowledge of the legality of the official act, their view practically implies `an utterly inadequate protection for the endangered enforcement officers.' * * * The draft (for a new criminal code) prepared in 1927 followed the decisions of the Reichsgericht and considered in its section 149, subsection 3 the legality of the official act as a circumstance forming a prerequisite for punishment."Page 307
2. Eduard Kohlrausch, Strafgesetzbuch, 38 ed., Berlin, Gruyter, 1944.
"Page 312.Intent.— According to section 59 of the criminal code1a mistake on the part of the person resisting in regard to the legality of the official act (i.e., in regard to objective and subjective elements which would seem to determine such legality) excludes the punishment. The Reichsgericht, however, considered the mistake irrelevant basing its opinion on the history and the purpose of section 113 * * *. Thereby, the characteristics of legality of the official act have been changed from a factual element of the crime to a circumstance forming the prerequisite for punishment."
4. A commentary of authority by Otto Schwarz, Strafgesetzbuch, 12th ed. Munich, 1943, comments upon section 113:
"4.Intent.— The offender must know that the official is acting in the exercise of his office, that means, that he is an official, anddoluseventualis(indirect intent) suffices (Decision on the Reichsgericht, vol. 3, p. 14.). * * * On the contrary, the legality of the exercise of office does not constitute a factual element of the crime as defined by the statute, but it constitutes only a circumstance forming the prerequisite for its punishment so that section 59 of the criminal code is of no benefit to the offender who did not know it (that he resisted a legal exercise of office). This was constantly held by the courts."
On the basis of the memorandum submitted, this Service concludes:
(1) It is not necessary in order to obtain a conviction to establish the legality of the official act of the police officer; that being an element which goes to the degree of the punishment but not to the substantive nature of the offense.
(2) It is necessary in order to obtain a conviction to establish that the offender knew that the official was acting in the exercise of his office, that means, that he is an official, such knowledge being a substantive element of the offense.
It thus appears that the statute under consideration differs from the Canadian statute with respect to the knowledge on the part of the accused as to the nature of the official being assaulted. Accordingly, we reach the conclusion that a violation of section 113 of the Criminal Code of Germany at least insofar as it prohibits assaults upon an official while engaged in the lawful exercise of his office, is a crime involving moral turpitude.Page 308
The term "crime involving moral turpitude" means an act done contrary to justice, honesty, modesty, or good morals, which in itself is one of baseness, vileness, and depravity in the private and social duties that a man owes to his fellow man or to society as distinguished from an act that is wrong merely because prohibited by law, (U.S. ex rel. Myliusv.Uhl,203 Fed. 152, aff'd 210, 860 (C.C.A. 2, 1913)).
The maintenance of orderly government requires on the part of each individual an obedience to the law and to constituted authority. An individual who engages in a riot and therein assaults a police officer engaged in the lawful practice of his office, knowing the person to be a police officer, appears to this Service to be engaged in an act of wanton lawlessness which is contrary to the duties owed to society. Accordingly, we reach the conclusion that a violation of section 115 of the Criminal Code of Germany at least insofar as it concerns assaults upon an official while engaged in the lawful exercise of his office, is a crime involving moral turpitude.
The immigration visas issued to the applicants on March 14, 1950, expired 4 months after date of their issuance and the applicants are inadmissible on the ground that they are not in possession of valid unexpired immigration visas. Accordingly, the applicants will be found inadmissible on that ground, (U.S. exrel. Jelicv.District Director of Immigration,106 F. (2d) 14). Since the visas of the female appellants are no longer valid for the reason that they expired, the lesser charge that they are not eligible displaced persons as specified in the visa of their immigration visas need not be sustained.
Upon consideration of the entire record, the findings of fact and conclusions of law prepared by the Board of Special Inquiry are hereby adopted except that findings of fact (3) and (6) are amended to read:
F.F. (3) That the applicants' immigration visas issued on March 14, 1950, expired 4 months from date of issuance.
F.F. (6). That you, A---- O----, have been convicted by a summary military court at Augsburg, Germany, on March 28, 1947, of the crime of taking part in a public riotous gathering and assaulting a German policeman in the lawful exercise of his office.
and conclusion of law (2) is amended to read:
C.L. (2) That under section 13 (a) of the Immigration Act of 1924 the applicants are inadmissible in that they are not in possession of valid immigration visas and not exempted from presentation thereof by said act or regulations made thereunder.Order:It is ordered that the excluding decision of the Board of Special Inquiry be affirmed.Further order:It is further ordered that the excluding decision with respect to the applicants, R---- M---- O---- and T---- O----,Page 309be without prejudice to reapplication within one year when in possession of appropriate documents.
Appellant A---- O---- is a 27-year-old native and citizen of the Union of Soviet Socialist Republics. His wife, R---- M----, who is 22 years old, and his daughter, T----, 3 years of age, are both natives of Germany and citizens of the Union of Soviet Socialist Republics.
Appellants have applied for admission for permanent residence under Public Law 774 (80th Cong.). Visas were issued to appellants on March 14, 1950, by the American consul at Augsburg, Germany. Appellants, A---- and T----, were charged to the quota of the Union of Soviet Socialist Republics, while appellant R---- M---- was charged to the quota of Germany. Passports were waived by the Secretary of State.
Appellant's sponsor, the Church World Service, assures the Immigration Service that appellant A---- will be employed as a farmer in New Windsor, N.J. Appellant A---- testified that he has had continuous experience doing farmwork since childhood, although he has recently been working as a shoemaker.
Appellant A---- stated that he was brought to Germany by the German Army in September 1943; that he married on November 29, 1947, at Augsburg, Germany; and that his wife and child are entirely dependent upon him for support.
According to the record, appellant A---- was convicted on March 28, 1947, by a summary military court in Augsburg of violating section 115 of the German Penal Code. He received a sentence of 60 days' imprisonment.
The conviction record states that appellant A----, a "Ukrainian, did at Augsburg on 18 March 1947 take part in a public riotous gathering and use force and threats against a German policeman in the lawful exercise of his office."
Upon being questioned about this incident, appellant A---- testified as follows:
Q. By whom were you arrested and for what reason?
A. I was arrested by the German police. One day I came home from my friends and passed through the Koenigsplatz, Augsburg, Germany, and there were many people there and the policemen were standing there with about 20 people. When I passed, the policeman asked me what I wanted, and I told him I did not want anything, that I was only passing through.Page 310
Q. Do you know why the policeman arrested you?
A. At that time I could not understand German very well; I did not know what the policeman told me. I was rude to the policeman.
Q. I repeat the question: Why were you arrested?
A. I did not hear what the policeman told me, so I was arrested.
* * * * * * *
Q. Did you learn in court on what charges you were being tried?
A. Yes; because I quarreled with the policeman and because I was rude to him.
* * * * * * *
Q. If the proceedings in court were conducted in the German language, then you have a thorough understanding of all that took place in court. Is that correct?
A. There was an interpreter present.
Q. Why was there an interpreter if you are conversant in the German language?
A. At that time I did not understand and speak German very well.
The Acting Assistant Commissioner found that the crime defined by section 115 is a crime involving moral turpitude and sustained the appellant's exclusion under section 3 of the Immigration Act of 1917.
Section 115 of the German Code, as amended in 1945, provides as follows:
RIOT — AUFRUHR
Whoever takes part in a public riotous gathering at which one of the offenses mentioned in sections 113 and 1141is committed by the gathering shall be punished for riot by imprisonment for not less than 6 months.
The ringleaders as well as those rioters who have committed one of the offenses specified in sections 113 and 114 shall be punished by confinement in a penitentiary not to exceed 10 years; police surveillance may also be ordered.Page 311If there are extenuating circumstances, imprisonment for not less than 6 months may be imposed.
The Acting Assistant Commissioner, in reaching the conclusion referred to in the penultimate paragraph above, refers to our decision inMatter of S----,A-7476137 (September 15, 1950), wherein we held that the crime defined by section 113 of the German Criminal Code (supra,footnote 1) does not involve moral turpitude. We said among other things in theS----case (supra), "There is nothing in the record to show that the arresting officer was assaulted or that he suffered any bodily injury when he arrested the adult male appellant on December 3, 1948. * * * It is true that the charge sheet filed by the arresting officer on December 8, 1948, contains the words `by force and violence' but it is silent as to the nature or character of the force and violence, if any. It may have been that the resistance offered by the male appellant was passive rather than active." It is the view of the Acting Assistant Commissioner that the Board's decision inMatter of S----is not dispositive of the issue presented in the instant case except to the extent that our decision warrants the inference that an assault upon an arresting officer, as distinguished from a resistance to an arrest, would involve moral turpitude.
We concur in the view that our decision inMatter of S----(supra), is not dispositive of the issue here presented. We also agree with the position taken by the Acting Assistant Commissioner that if the German statute under consideration requires no knowledge on the part of the accused that the person assaulted was a police officer engaged in the performance of his duties in order to obtain a conviction, then it must be concluded that section 115 of the German Code does not define a crime involving moral turpitude. The Acting Assistant Commissioner finds that in order to obtain a conviction under section 115 of the German Penal Code, it is necessary to establish "that the offender knew that the official was acting in the exercise of his office."
The foregoing conclusion is supported by references to a memorandum prepared by two members of the Foreign Law Section of the Library of Congress under date of December 12, 1950. We have carefully examined the memorandum in question. The authors thereof have been consulted. It is our impression that the memorandum, to say the least, presents a conflict of authority on the subject of scienter. For example, the commentary by Schonke, Strafgesetzbuch, Kommentar, 3d ed., Munchen, 1947, reads in part:
It is disputed, in particular, whether in Section 113 the legality of the official act is a factual element of crime or a prerequisite for its punishment. * * * The perpetrator must know or take the risk that the person in question is an officer * * *.
It is our position that if the accused knew that the person assaulted was a police officer, the element of risk would not be involved.Page 312
The commentary by Otto Schwarz, Strafgesetzbuch, 12th ed., Munich, 1943, on section 113 also appears to present a conflict. He says, on the one hand, "The offender must know that the official is acting in the exercise of his office * * * that he is an official." Yet on the other hand he says, "Section 592of the (German) Criminal Code is of no benefit to the offender who did not know it (that he resisted a legal exercise of office). This was constantly held by the courts." Accordingly, we find on the basis of the foregoing discussion that section 115 of the German Criminal Code may include an offense which does not involve moral turpitude because it appears that scienter is not necessarily an element of the statute.
The position we have taken above is supported from a practical viewpoint by referring to the term "official" (Beamte) as used in section 113 of the German Criminal Code. The appellant herein has been convicted for committing an offense defined by section 113 (supra, footnote 1) while engaged in a public demonstration. The term "official" is defined by section 359 of the German Criminal Code.3Since section 113 encompasses "all persons in the service of the Reich," we find it extremely doubtful that "scienter" must be proved before a conviction will lie, because, as noted by the commentator Schonke, this would provide "an utterly inadequate protection for the endangered enforcement officers."
There is another factor in the record which creates a doubt that the offense committed by the appellant involves moral turpitude. Exhibit 1, which purports to be an extract of the record of the appellant's conviction in case No. 8252 before a summary military court on March 28, 1947, charges the appellant as follows: "* * * did * * * take part in a public riotous gathering and use force and threats against a German policeman in the lawful exercise of his office, to wit: On 18 March 1947." It states on its face that this record is located at "HICOG, Augsburg, Germany."
We have been informed that exhibit 2, a document in the German language with the title of "Bestatigung," amounts to a certificate inPage 313the nature of a police record issued and executed by a German civil official of the city of Augsburg, which among other things reflects in the German language a copy of a complaint lodged against the subject of the certificate for which he was tried and convicted in the ordinary military court at Augsburg on March 28, 1947. It has been brought to our attention that the German word "Beschimpfung," found in that portion of the certificate which refers to the offense under consideration, does not connote, nor can it be translated as referring to the use of any force or the threat of the use of any force. The English equivalent, according to the translation attached, is "insulting." Another equivalent, we have been informed, is "using improper language" or "having a verbal exchange in a loud voice."
It is apparent from the foregoing that there is a conflict between the charges set forth in exhibits 1 and 2. Exhibit 2 supports the appellant's version of the incident as brought out by his testimony before the board of special inquiry (supra). Exhibit 1 is silent as to the nature and character of the "force and threats" employed by the appellant against the police officer. The descriptive portion of exhibit 2 charges that appellant merely engaged in a "verbal exchange" or "insulted a German policeman exercising his duty." There is no showing that force or violence accompanied the verbal exchange. The rationale, therefore, is that section 115 of the German Penal Code, like the related section 113, is broad enough to encompass a passive resistance as well as one accompanied by force and violence.
There is no offense under section 115 of the German Criminal Code (supra), unless an act set forth in either section 113 or 114 of the code is committed during the public demonstration. The description of the offense, both in exhibits 1 and 2, reflects that only section 113 is applicable here. We find on the record before us that a conviction under section 115 of the German Penal Code may be obtained notwithstanding the fact that the accused did not know that the person assaulted was a police officer. We also find that section 115 is broad enough to encompass acts which do involve moral turpitude as well as those which do not. Since the minimum requirement must serve as the test (Myliusv.Uhl,210 Fed. 860), we conclude that on this record the appellant has not been convicted of a crime involving moral turpitude. The criminal ground for exclusion is not sustained.
The Acting Assistant Commissioner, in addition to the criminal ground of inadmissibility against the principal appellant, also finds the appellants inadmissible because not in possession of unexpired immigration visas. The visas were valid at the time the appellants applied for admission to the United States. Accordingly, the documentary grounds of inadmissibility are not sustained.Order:It is ordered that the appeal be sustained.Page 314
- Sec. 59 of the German Criminal Code deals with the effect of mistakes in general. It reads:
"GUILT AND MISTAKE OF FACT"59. If a person in committing an offense did not know of the existence of circumstances constituting the factual elements of the offense as determined by statute or increasing the punishment, then these circumstances may not be charged against him.
"In punishing an offense committed through negligence this provision applies only insofar as the lack of knowledge does not in itself constitute negligence for which the offender is responsible."
See also the comments to this section in Gsovski, Statutory Criminal Law of Germany with Comments, Washington, D.C. 1947, pp. 59-60. ↩ - Section 113.Resistance to Enforcement Officers.— Widerstand gegen Vollstreckungsbeamte. Whoever, with force or threats of force, resists an official (Beamte) whose duty is to execute the laws, orders, and decrees of administrative authorities, or the judgments and orders of the courts while such official is engaged in the lawful exercise of his office, or whoever assaults such an official while he is engaged in the lawful exercise of his office, shall be punished by imprisonment from 14 days to 2 years.
If there are extenuating circumstances, the punishment shall be imprisonment not to exceed 1 year or a fine.
The same penalties apply if the act is perpetrated against persons who have been called to the assistance of the officials or against members of an armed force or against members of a municipal police or citizen armed force in the execution of their duty.
Section 114.Coercion of Officials.— Beamtennotigung. Whoever undertakes by force or threats to compel a public authority or an official to the commission or omission of an official act shall be punished by imprisonment for not less than 3 months.
If there are extenuating circumstances the punishment shall be imprisonment not to exceed 2 years or a fine. ↩ - Section 59, entitled "Guilt and Mistake of Fact," reads as follows:
"If a person in committing an offense did not know of the existence of circumstances constituting the factual elements of the offense as determined by statute or increasing the punishment, then these circumstances may not be charged against him.
"In punishing an offense committed through negligence this provision applies only insofar as the lack of knowledge does not in itself constitute negligence for which the offender is responsible." ↩ - Beamte: An official within the meaning of the criminal code shall include all persons in the service of the Reich or in the direct or indirect service of a land, whether for life, for a period of time, or only temporarily without distinction as to whether they have or have not taken oaths of office, and likewise shall include notaries but not advocates and attorneys. ↩