Opinion · United States Board of Immigration Appeals

IN THE MATTER OF J----, 2 IN Dec. 477 (BIA 1946)

IN THE MATTER OF J----. In DEPORTATION Proceedings., 2 I. & N. Dec. 477 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1946)

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1946-02-25
Topic
general

IN THE MATTER OF J----, 2 IN Dec. 477 (BIA 1946) IN THE MATTER OF J----. In DEPORTATION Proceedings. A-7712748.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board February 25, 1946. Crime involving moral turpitude — Assault with intent to commit manslaughter — Florida.

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IN THE MATTER OF J----,2 IN Dec. 477(BIA 1946)
IN THE MATTER OF J----. In DEPORTATION Proceedings.
A-7712748.
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board February 25, 1946.
Crime involving moral turpitude — Assault with intent to commitmanslaughter — Florida.

The crime in Florida of assault with intent to commit manslaughter involves moral turpitude since it contemplates only "voluntary manslaughter" as it existed at common law, which requires an evil intent or depraved motive to take human life.

CHARGE:

Warrant: Act of 1917 — Crime committed within 5 years after entry.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:The respondent, a native and citizen of the Bahamas, British West Indies, male, 29 years of age, last entered the United States at the port of Miami, Fla., on May 6, 1943, and was admitted to perform farm labor, valid through April 1, 1944. The respondent terminated his employment with the War Food Administration on April 17, 1945. He was arraigned in the Criminal Court, Palm Beach County, Fla., on May 22, 1945, on an information charging that on April 28, 1945, the respondent "with a certain deadly weapon, to wit, a pistol * * * with premeditated design and intent her * * * then and there unlawfully to kill and murder, then and there an assault did make, and her * * * did then and there beat, bruise, wound and ill-treat." The court accepted the respondent's plea of guilty to the crime of assault with intent to commit manslaughter as provided in section 909.09, Florida Statutes Annotated.1The respondent was sentenced to the State Prison for a period of 5 years at hard labor.

The information as drawn states the crime of assault to commit murder first degree. We must therefore strike the allegations in the information which relate to premeditated killing and consider only those allegations necessary to charge the crime of manslaughter. AnPage 478indictment properly drawn for murder in the first degree charges manslaughter as well as murder in all its degrees; and in a trial thereupon is involved a question of defendant's guilt as to every grade of unlawful homicide.McCoyv.State,40 Fla. 494,24 Southern 485.

The crime of assault with intent to commit manslaughter is defined by section 784.06, Florida Statutes, Annotated, as follows:
Whosoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life shall be punished by imprisonment in the State prison not exceeding 20 years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.2


The substantive crime of manslaughter is defined by section 782.07, as follows:
The killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this chapter, shall be deemed manslaughter, and shall be punished by imprisonment in the State prison not exceeding 20 years, or imprisonment in the county jail not exceeding 1 year, or by fine not exceeding $5,000.


Other sections of the Florida code deem certain homicides to be manslaughter, such as assisting self-murder, killing of an unborn child by injury to the mother, abortion, killing by mischievous animal, drowning in an overloaded vessel, death from a racing steamboat, and a killing by an intoxicated physician. (See sections 782.08 through section 782.15.)

The precise question for determination in the case at bar is whether or not the crime of "assault with intent to commit manslaughter" involves moral turpitude. The question before us is necessarily complicated and made difficult when we consider the substantive crime of manslaughter as defined by the various Florida statutes and interpreted by the Florida courts. The Supreme Court of Florida inFolksv.State,85 Fla. 238,95 So. 619, held that intent is not an essential element for the crime of manslaughter. In other cases this court has held that intent is not an essential element of the statutory definition of manslaughter when committed by culpable negligence, and that the element of criminal intent has been supplanted by the element of culpable negligence.Kentv.State,53 Fla. 51,43 So. 773;Hulstv.State,123 Fla. 315,166 So. 828.Page 479

It is well established that a crime to involve moral turpitude must be accompanied by an evil intent or depraved motive.U.S.v.Carrollo,30 F. Supp. 3(W.D. Mo. 1939). It is in the intent that moral turpitude inheres.U.S. ex. rel. Meyerv.Day,54 F. (2d) 336(C.C.A. 2, 1931).

Thus when we consider the substantive crime of manslaughter, where no intent is required, without the adjective portion of the statute, namely, "assault with intent to commit," we have a situation analogous to that considered in theMongiovicase by the District Court of the Western District of New York when they interpreted a similar manslaughter statute of the State of New York3not to involve moral turpitude because of the crime as defined by New York statute does not include an evil intent or commission of the act willfully or designedly, and it expressly includes an act resulting in death without design to injure or effect death,U.S. ex rel. Mongioviv.Karnuth,30 F. (2d) 825(1929). This Board followed the ruling in theMongiovicase inMatter of D---- B----,56073/321 (May 11, 1944).

In the case at bar, however, we must consider a statute which by its very terms includes the element of intent to kill, although this element is not required by Florida statute in the substantive crime of manslaughter. On this point the Supreme Court of Florida in the case ofFortnerv.State,119 Fla. 150(1935), (Brown, J., concurring with the majority) said:
* * * In regard to the question of "intent to kill," as an element of the offense of assault with intent to commit manslaughter, * * * the question thus raised is complicated and made difficult by reason of the fact that under our statute the crime of manslaughter may be committed where there is no intent to kill whatever, such as cases where the death of the person killed is caused by "culpable negligence" of the accused. In this class of cases,I do not see how any one could be convicted of thecrime of assault with intent to commit manslaughter,because of the element of intent need not be presentat all in the crime itself.On the other hand, there is a class of cases, where the intent to kill is an element of the crime of manslaughter. The crime of assault with intent to commit manslaughter has reference to manslaughter of this latter type, and may be sustained by evidence showing an unlawful assault with intent to kill, thoughwithoutpremeditated design.* * *
At common law manslaughter consisted in the unlawful killing of another without malice either expressed or implied. It was commonly divided into voluntary and involuntary manslaughter. Voluntary manslaughter was thePage 480intentional killing of another in a sudden heat of passion due to adequate provocation and not with malice. Involuntary manslaughter consisted in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself. At common law there was no such offense as assault with intent to commit manslaughter.
Our general statute on the subject of manslaughter * * * appears to cover, in substance, both voluntary and involuntary manslaughter as they existed at common law, and reads as follows: (Quotes statute as stated above).


* * * * * * *
To constitute the offense of assault with intent to commit manslaughter, the homicide, if accomplished, must have amounted to voluntary manslaughter * * *


* * * * * * *
If an assault be committed unlawfully and with an intent to take life, but not from a premeditated design to take life, and not by any act imminently dangerous to another and evincing a depraved mind regardless of human life, it would be an assault with an intent to commit manslaughter.
It therefore appears that in a case of the kind now under consideration an intent to kill isanessential element of an assault with intent to commitmanslaughter.* * * The gist of the offense is the intent to kill. [Italics supplied.]


From the foregoing we are of the opinion that the general statute for the crime of manslaughter in the State of Florida includes, in substance, both voluntary and involuntary manslaughter as they existed at common law, and the statute is so stated that the two crimes are not separable. However, the crime of "assault with intent to commit manslaughter" contemplates only "voluntary manslaughter" as it existed at common law, and there can be no conviction where the substantive crime amounts to only involuntary manslaughter. Voluntary manslaughter involves moral turpitude because it requires an evil intent or depraved motive to take human life.Matter of D----,56137/380 (Oct. 29, 1943);Matter of S----,56131/71 (Aug. 21, 1943);Alessiov.Day,42 F. (2d) 217(C.C.A. 2, 1930).

It is concluded, therefore, that the respondent has been sentenced on or after May 1, 1917, 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 of entry, to wit, assault with intent to commit manslaughter.Findings of Fact:Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of the Bahamas, British West Indies;
(2) That the respondent last entered the United States at the port of Miami, Fla., on May 6, 1943, and was admitted as an agricultural laborer to April 1, 1944;
Page 481
(3) That the respondent terminated his employment as an agricultural laborer on April 17, 1945, and has remained in the United States since April 1, 1944;
(4) That the respondent in the criminal court of Palm Beach County, Fla., was convicted of the crime of assault with intent to commit manslaughter, committed April 28, 1945;
(5) That for the aforesaid offense the respondent was sentenced on May 22, 1945, to imprisonment in the Florida State Prison for a period of 5 years.
Conclusions of Law:Upon the basis of the foregoing findings of fact it is concluded:
(1) That under section 5 (g) of the act approved April 29, 1943, the respondent is subject to deportation on the ground that he has remained in the United States after failing to maintain the exempt status of an agricultural worker under which he was admitted;
(2) That under section 19 of the Immigration Act of 1917, as amended, 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 as committed within 5 years after entry, to wit, assault with intent to commit manslaughter;
(3) That under section 20 of the Immigration Act of 1917, as amended, the respondent is deportable to Bahamas, British West Indies, at Government expense.
Other Factors:The respondent is married. His wife and four children are residents and citizens of British West Indies. He has no dependents in the United States.Order:It is ordered that the alien be deported to the Bahamas, British West Indies, on the charge stated in the warrant of arrest and lodged at the hearing.It is further ordered,That execution of the warrant be deferred pending conclusion of prosecution, and, in the event of conviction and sentence, until the alien is released from imprisonment.Page 482
  1. Section 909.09, Florida Statutes Annotated.Plea of guiltyon lesser offense or lesser degree.Defendant, with the consent of the court and of the prosecuting attorney, may plead guilty of any lesser offense than that charged in the indictment or information, or of any lesser degree of the offense charged. ↩
  2. Felonies and misdemeanors are defined by Section775.08, Florida Statutes, Annotated, as follows: "Any crime punishable by death or imprisonment in the State penitentiary is a felony, and no other crime shall be so considered. Every other offense is a misdemeanor." ↩
  3. Sec. 1052, Penal Law of New York, defines manslaughter in the second degree as a crime committed without design to effect death: (1) Not relevant; (2) not relevant; (3) by any act, procurement or culpable negligence of any person which, according to the provisions of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree. (Note.— In Florida the Criminal Code provides for no degrees of manslaughter; however, murder in the third degree is comparable to manslaughter in the first degree in the State of New York.) ↩