Opinion · United States Board of Immigration Appeals

IN THE MATTER OF D----, 3 IN Dec. 51 (BIA 1947)

3 IN Dec. 51

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1947-10-17
Topic: general

IN THE MATTER OF D----, 3 IN Dec. 51 (BIA 1947) IN THE MATTER OF D----. In DEPORTATION Proceedings. A-6214908Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board October 17, 1947 Manslaughter — New Jersey — Charge of first degree murder, plea of not guilty but found guilty of manslaughter — Determination whether offense is voluntary manslaughter, which offense involves moral turpitude. (1) An alien, indicted in New Jersey, of first degree murder (1932), pleaded not guilty, but a jury found him guilty of manslaughter after a trial on the merits.

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UpLaw has not yet analyzed IN THE MATTER OF D----, 3 IN Dec. 51 (BIA 1947). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF D----,3 IN Dec. 51(BIA 1947)

IN THE MATTER OF D----. In DEPORTATION Proceedings.

A-6214908

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by Board October 17, 1947

Manslaughter — New Jersey — Charge of first degree murder, pleaof not guilty but found guilty of manslaughter — Determinationwhether offense is voluntary manslaughter, which offenseinvolves moral turpitude.

(1) An alien, indicted in New Jersey, of first degree murder (1932), pleaded not guilty, but a jury found him guilty of manslaughter after a trial on the merits. The New Jersey criminal statutes do not define the crime of manslaughter, but the courts there held section 2: 138-5 New Jersey Criminal Statutes embraces both voluntary and involuntary manslaughter. In the absence of evidence to the contrary in the record of conviction, the manslaughter is considered to be voluntary in such case, the indictment providing that the homicide was committed by means of an assault with malice aforethought. (See2 IN Dec. 559.)

(2) Voluntary manslaughter is an offense involving moral turpitude.

(3) In determining whether a killing is voluntary or involuntary, the administrative agency is precluded from going behind the record of conviction.

CHARGE:

Warrant: Act of 1917 — Sentenced more than once for crimes — Manslaughter; and manslaughter

Upon consideration of the entire record, the findings of fact and conclusions of law relating to deportability proposed by the presiding inspector and served on the alien by mail November 20, 1946, are hereby adopted.Discussion:The facts of this case are fully set forth in the Commissioner's opinion. Briefly, they are as follows: The respondent is an alien, a native and citizen of Turkey, who testified that he last entered the United States at the port of New York during the year 1918 as a passenger ex S.S.Whiteland(phonetic). He was indicted in the State of New Jersey during June of 1932 on two charges of first degree murder. Both indictments allege that the respondent "with force and arms in and upon (A and B) * * * wilfully and unlawfully an assault did make; * * * and * * * did then and there wilfully, unlawfully, feloniously, and of his malice aforethought kill and murder * * * (A and B)." The respondent pleaded not guilty to both indictments but two separate juries returned a verdict of "Guilty of manslaughter * * * So say they all."Page 52

The New Jersey Criminal Statutes do not define the crime of manslaughter.¹The courts of New Jersey have held that section 2:138-5, New Jersey Criminal Statutes, embraces both voluntary and involuntary manslaughter.²In construing the immigration laws the courts³and this Board⁴have consistently held that voluntary manslaughter involves moral turpitude and that involuntary ordinarily does not. FollowingMyliusv.Uhl,203 Fed. 152 (S.D.N.Y., 1913), we are precluded from going behind the record of conviction to determine whether the killing was voluntary or involuntary.

The case at bar presents an almost identical situation as that considered by the Attorney General inMatter of S----,5530239, July 18, 1947. The only difference, as we see it, is that in theS----case the alien on two occasions was convicted on pleas of guilty to lesser offenses than that charged in the indictment, while in the case at bar the alien's pleas to both indictments were "Not guilty" and after a trial on the merits he was found guilty by the jury of a lesser offense, to wit, manslaughter.

The Attorney General in theS----case (supra) concluded that the crimes committed by the alien involved moral turpitude. He reasoned that each indictment for murder clearly charged the alien with voluntary killings and that by his (alien's) plea of guilty of manslaughter he (the alien) admitted the killing. The Attorney General stated:

In the absence of other evidence in the records of conviction under Ohio statute, it is reasonable to conclude that the homicides committed by the alien were voluntary.

The judgments of conviction herein considered relate that the respondent was found "Guilty of manslaughter * * * so say they all." The indictments provide that the homicides were committed by means of an assault with malice aforethought. Accordingly, they must be considered voluntary. The respondent has been convicted of two killings. Following the Attorney General's ruling inMatter of S----(supra), we conclude that both homicides committed by the respondent were voluntary under New Jersey statutes, in the absencePage 53of evidence to the contrary in the records of convictions. The charge stated in the warrant of arrest is therefore sustained.Order:It is ordered that the alien be deported to Turkey at Government expense on the charge stated in the warrant of arrest.Page 54

New Jersey Criminal Statutes, sections 2: 138-1, 2, 5, and 11 are fully set forth in the Commissioner's opinion. (Set forth at end of this opinion.) ↩
Statev.Biango,75 N.J.L. 284,68 A. 125(Nov. 11, 1907);Statev.Zellers,72 N.J.L. 220;Statev.Blaine,137 A. 829 (June 10, 1927) aff'd104 N.J.L. 323,140 A. 566;Statev.Ireland,126 N.J.L. 444,20 A. 2d 69(May 22, 1941). Appeal dismissed,127 N.J.L. 558,23 A. 2d 560. ↩
Mongioviv.Karnuth,30 F. (2d) 825(D.C.N.Y., 1929);U.S. ex rel. Sollanov.Doak,5 F. Supp. 561(D.C.N.Y., 1933) aff'd 68 F. (2d) 1019;In re Schiano Di Cola,7 F. Supp. 194(D.C.R.I., 1934). ↩
Matter of S----,56020/580, June 5, 1943;Matter ofR---- N----,55723/332, Nov. 17, 1941;Matter of S----,56131/71, August 21, 1943;Matter of D----,56137/380, October 26, 1943.
The New Jersey criminal statutes pertinent to the conviction of manslaughter are as follows (see footnote 1,supra):

SEC. 2:138-1.Murder.— If any person, in committing or attempting to commit arson, burglary, rape, robbery, sodomy, or any unlawful act against the peace of this State, of which the probable consequences may be bloodshed, shall kill another; or if the death of anyone shall ensue from the committing or attempting to commit any such crime or act as aforesaid; or if any person shall kill any judge, magistrate, sheriff, coroner, constable, or other officer, either civil or criminal, of this State, or a marshal, or other officer of justice, either civil or criminal of the United States, in the execution of his office or duty, or shall kill any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or shall kill a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing as aforesaid shall be guilty of murder.

SEC. 2: 138-2.Degrees of murder; designation inverdict.— Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate arson, burglary, rape, robbery or sodomy, shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or in the second degree.

SEC. 2: 138-5.Manslaughter.— Any person who shall commit the crime of manslaughter shall be punished by fine not exceeding one thousand dollars, or imprisonment at hard labor or otherwise not exceeding 10 years, or both.

SEC. 2: 188-11.Allegations in indictment for murderand manslaughter.— In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did willfully, feloniously, and of his malice aforethought, kill, and murder the deceased; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.
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