IN THE MATTER OF S----, 1 IN Dec. 519 (BIA 1943)

The record of sentence * * * states merely "convicted of the crime of manslaughter," while the information alleges only that the respondent "murdered Antonio Jacobs." The record of conviction does not indicate in what manner the crime was committed, and, therefore, it might have involved moral turpitude or, conversely, it might not have embraced the elements of intent. In the absence of any evidence to determine this fact, we cannot conclude that the alien has been convicted of a deportable offense (United States ex rel. Zaffaranov.Corsi,63 F. 2d 757).

Section 619:14 defines manslaughter in the first degree as homicide "when committed without a design to effect death: (1) By a person engaged in committing or attempting to commit a misdemeanor or gross misdemeanor affecting the person or property either of the person killed or of another; or (2) in the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon."

Section 619:15 provides that a homicide is manslaughter in the first degree "when committed without a design to effect death: (1) By a person engaged in committing or attempting to commit a misdemeanor affecting the person or property either of the person killed or of another; (2) in the heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon; or (3) by shooting another with a gun or other firearm when resulting from carelessness in mistaking the person shot for a deer or other animal."

Section 619:16 provides that "Every person who shall wilfully kill an unborn quick child by an injury inflicted upon the person of its mother, and every person who shall provide, supply or administer to a woman * * * any medicine, etc., with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve her life * * * and the death of the woman, or that of any quick child of which she is pregnant, is thereby produced, shall be guilty of manslaughter in the first degree."

Such homicide is manslaughter in the first degree, when committed without a design to effect death * * *.

2. In the heat of passion but in a cruel and unusual manner, or by means of a dangerous weapon.

The crime of assault is a less serious crime than manslaughter. That assault with a dangerous weapon involves moral turpitude was held inUnited Statesex rel. Morlacciv.Smith(D.C.)8 F. 2d 663;Weedinv.Tayokichi Yamada,4 F. 2d 455(C.C.A. 9, 1925). The alien stresses the language of definition of manslaughter as excluding intent. Absence of intent, necessarily implies absence of moral turpitude, argues the alien. The only intent lacking in manslaughter in the first degree is intent to effect death. Had there been intent to kill, it would not have been manslaughter in the first degree but murder. The lack of such an intent does not mean lack of an intent to inflict grievous bodily harm or lack of intent to injure or such lack of intent as to negative moral depravity. If the dangerous weapon is used solely in self-defense without the use of excessive force and under circumstances which justified the use of the weapon, no crime at all would be committed. The conviction, however, negatives all elements of self-defense. But one who uses a dangerous weapon like a revolver, not in self-defense, but in such a way as to cause the death of another, must be held so lacking in sense of moral responsibility as to be morally depraved and his act to be one involving moral turpitude. Both upon reason and authority, the crime of manslaughter in the first degree involves moral turpitude.

(1) That the respondent is an alien, a native and citizen of Mexico;

(2) That the respondent last entered the United States on January 20, 1938, at Laredo, Tex.;

(3) That on October 15, 1941, the respondent was indicted in the District Court of Waseca County, Minn., for murder in the first degree;

(4) That said indictment charged that the respondent on or about August 30, 1941, without excuse or justification and with a premeditated design, killed another person by shooting him with a revolver;

(5) That the respondent was tried by a jury which brought in a verdict of guilty of manslaughter in the first degree;

(6) That on November 3, 1941, the respondent was convicted of the crime of manslaughter in the first degree;

(7) That for the foregoing offense the respondent was sentenced to imprisonment for a term not to exceed 20 years.

That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation in that on or after May 1, 1917, he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: manslaughter in the first degree.