Opinion · United States Board of Immigration Appeals
IN THE MATTER OF B----, 4 IN Dec. 493 (BIA 1951)
4 IN Dec. 493
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1951-10-09
- Topic
- general
IN THE MATTER OF B----, 4 IN Dec. 493 (BIA 1951) IN THE MATTER OF B----. In DEPORTATION Proceedings. A-1101248.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board October 9, 1951. Crime involving moral turpitude — Manslaughter (New Jersey) — Section 2: 138-5 of the New Jersey Criminal Statutes — Voluntary and involuntary manslaughter.
Citator
UpLaw has not yet analyzed IN THE MATTER OF B----, 4 IN Dec. 493 (BIA 1951). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF B----,4 IN Dec. 493(BIA 1951)
IN THE MATTER OF B----. In DEPORTATION Proceedings.
A-1101248.
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board October 9, 1951.
The New Jersey Criminal Statutes do not define the crime of manslaughter. The courts of New Jersey have held that section 2: 138-5 of the New Jersey Criminal Statutes embraces both voluntary and involuntary manslaughter. Under this statute as interpreted by the New Jersey courts the term "feloniously did make an assault" could charge either an aggravated assault or a simple assault. Since it cannot be determined from the statute or conviction record that the offense was voluntary manslaughter rather than involuntary manslaughter, it cannot be concluded that the offense of which the alien was charged and convicted involves moral turpitude. (See3 IN Dec. 51, and2 IN Dec. 14,15(h), and4 IN Dec. 512.)
CHARGES:
Warrant: The act of February 5, 1917, in that on or after May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of a conviction in this country of crimes involving moral turpitude after entry, to wit: Manslaughter and larceny and receiving stolen goods.
BEFORE THE BOARD
The facts of the case are fully set forth in the Commissioner's opinion of March 18, 1946. Briefly, they relate to a native of Russia, last a citizen of Poland, whose one and only entry into the United States was at the port of New York on January 8, 1933, at which time he was admitted for permanent residence. The evidence of record establishes that since coming to the United States the respondent hasPage 494been arrested and sentenced to terms of a year or more on two occasions; once for manslaughter in 1934 and once for larceny and receiving stolen goods in 1942.
The indictment herein considered relating to the crime of manslaughter for which he was convicted in the Court of Quarter Sessions at Camden, N.J., provides that the respondent "in and upon one M---- M---- * * * feloniously did make an assault, and him, the said M---- M----, then and there feloniously did kill and slay." It follows precisely the New Jersey procedural statute concerning allegations in an indictment for manslaughter.1Both the indictment and the commitment judgment of the court in the case at bar are silent as to the details or the circumstances surrounding the killing.
The New Jersey criminal statutes do not define the crime of manslaughter.2The courts of New Jersey have held that section 2: 138-5 of the New Jersey criminal statutes embraces both voluntary and involuntary manslaughter. For example, an indictment in precisely the same form as the one under consideration was before the court in the case ofStatev.Harrison,107 N.J.L. 213(1931). It charged the defendant "did feloniously kill and slay John G----." The indictment was based upon a grade-crossing accident in Belleville, N.J., where the street crosses the tracks of the Erie Railroad Co. at grade level. The defendant was employed by the railroad company, as a crossing gateman. The state claimed that the death of John G---- was due to gross negligence on the part of the defendant in failing to lower the crossing gates for an approaching train as a result of which John G---- drove upon the tracks in his automobile and was struck and killed by the train. It was contended before the New Jersey Supreme Court that the court below erred in refusing to direct a verdict for the defendant upon the ground that the State failed to prove that there was neglect or failure of the defendant's duty to an extent amounting to gross negligence. The appellate court, however, found that such a failure of duty on the part of a crossing watchmanPage 495justified a finding of gross negligence and the defendant's conviction by the court below was affirmed.
A similar indictment was involved in the case ofStatev.O'Brien,32 N.J.L. 169. In that case a watchman employed by the New Jersey Railroad Transportation Co. failed to perform his duty in closing a siding switch thus causing a passenger train to be diverted from the main line which resulted in a wreck and the death of a passenger. The court in its opinion said:
Intent to take life whether by an act of omission or commission distinguishes murder from manslaughter. In order to make out against the defendant the lesser offense of manslaughter it was not necessary that it should appear that the act of omission was willful or of purpose * * *. The defendant in this case omitted his duty under such circumstances as amounted to gross or culpable or criminal negligence.3
It may be argued that the term "feloniously did make an assault" as used in the indictment before us connotes an aggravated assault and thus turpitudinous. The principal question before the court in the case ofStatev.Thomas,65 N.J.L. 598(1901); 48 A. 1007, reversing64 N.J.L. 532,45 A. 913, was whether an indictment charging manslaughter in the words of the statute (supra,footnote 1) and similar to the one before us would support a conviction for assault and battery. The court of errors and appeals in setting aside the judgment rendered against the defendant in the supreme court of New Jersey said:
It is urged that the word "slay" imports a killing by direct personal violence, and hence includes assault and battery. But under our statute the formula "did feloniously kill and slay" charges manslaughter of either voluntary or involuntary character, and involuntary manslaughter may be committed without criminal assault and battery * * *. Hence the most that can be said of the present indictment on this point is that it charges an offense of which assault and battery may or may not be an ingredient. Such an accusation does not distinctly and precisely inform the accused that he is charged with this lower misdemeanor, as is required by the authorities cited.4At best, the charge is equivocal and inferential only.
We concede that the allegation in the indictment before us indicates that there was affirmative action on the part of the respondent which resulted in the death of the deceased. But under the statute as interpreted by the New Jersey courts the term "feloniously did make an assault" could charge either an aggravated assault or a simple assault. Since the crime of manslaughter is not defined by statute, and there is no allegation of malice in the indictment, nor is this element found in the statute, we have no way of determining what type of assaultPage 496resulted in the death of the deceased. It could well be a simple assault without malice aforethought, and hence only involuntary manslaughter. We cannot say that the offense was voluntary manslaughter if it is not distinctly set forth in the indictment ofStatev.Thomas(supra).
The immigration laws require that the crime committed by the alien involve moral turpitude. The courts5have consistently held that voluntary manslaughter involves moral turpitude and that involuntary ordinarily does not. We are not permitted to go behind the record to determine just what transpired.Myliusv.Uhl,203 Fed. 152 (S.D., N.Y., 1913). We must determine in each case that which must be shown to establish the guilt of the alien. Accordingly, the definition of the crime must be taken at its minimum. Under the rule laid down inMylius v. Uhl(supra), our hands are tied in a situation where the statute includes crimes which involve moral turpitude as well as crimes which do not inasmuch as an administrative body must follow definite standards, apply general rules, and refrain from going behind the record of conviction. It is true that in rare instances this rule results in a finding of nondeportability in some cases where the offense is indicative of bad character "but such results always follow the use of fixed standards, and such standards * * * are necessary for the efficient administration of the immigration laws."Myliusv.Uhl(supra). Relying upon the decisions of the New Jersey courts referred to above, the language used in the indictment under consideration cannot be said to be conclusive that the crime committed by the respondent amounts to voluntary manslaughter.
The case at bar is distinguishable from the Attorney General's ruling inMatter of S----,A-5530239,2 IN Dec. 559-569, July 18, 1947, and from our opinion inMatter of D----,A-6214908, October 17, 1947,3 IN Dec. 51. TheS----case involves an alien indicted in the State of Ohio in 1936 and again in 1943 for murder in the second degree. Both indictments alleged that the alien "unlawfully, purposely and maliciously killed" certain-named persons. On each occasion the alien pleaded guilty to the lesser offense of manslaughter and was sentenced to an indeterminate term of imprisonment. The alien in theD----case was indicted in the State of New Jersey during June of 1932 on two charges of first-degree murder. Both indictments charged that the respondent "with force and arms in and upon (A and B) * * * willfully and unlawfully an assault did make; * * * and * * * did then and there willfully, unlawfully, feloniously,and of hismalice aforethoughtkill and murder * * * (A and B)." [ItalicsPage 497supplied.] The alien pleaded not guilty to both indictments but two separate juries returned a verdict of "guilty of manslaughter * * * so say they all."
The Attorney General in theS----case (supra), reasoned that "in the absence of other evidence in the records of conviction under Ohio statutes, it is reasonable to conclude that the homicides committed by the alien were voluntary." Following the Attorney General's reasoning, we found in theD----case (supra), that the indictments for murder provided that the homicides were committed by means of an assault with malice aforethought and under the circumstances must be considered voluntary in the absence of evidence to the contrary in the records of conviction. The indictment in the case at bar, however, does not allege that the respondent "unlawfully, purposely, and maliciously kill," nor does it charge that the respondent "willfully and unlawfully an assault did make; * * * and * * * did then and there willfully, unlawfully, feloniously, and of his malice aforethought kill and murder" the deceased. A party indicted for a crime may be convicted of any offense of a lower grade provided such lower offense is included within the description in the indictment. No such description of voluntary manslaughter is included in the indictment before us.Order:It is ordered that that portion of the motion directed to the termination of the proceedings under the outstanding warrant of arrest be and the same is hereby granted; the order entered by this Board on June 6, 1946, and the warrant of deportation predicated thereon are hereby withdrawn.
The only issue is whether or not the offense of manslaughter for which this alien was convicted in the State of New Jersey during the month of December 1933 is an offense involving moral turpitude.
The majority of the Board are of the opinion that the offense of manslaughter as defined by the statute in the State of New Jersey and as here committed by the petitioner is not a crime involving moral turpitude. With this determination I am unable to agree.
The facts in the case are discussed in the opinion of the Commissioner of Immigration of March 18, 1946. The subject hereof is a native of Russia and he was last a citizen of Poland. He arrived in the United States at New York on January 8, 1933, and was thereafter admitted for permanent residence. Subsequent to entry to the United States the subject hereof was sentenced to imprisonment for termsPage 498of 1 year or more, the one offense being manslaughter committed in 1934 and the other larceny and receiving stolen goods in 1942.
The indictment returned by the grand jury in New Jersey for the offense of manslaughter as aforesaid as shown in exhibit 3 reads in part as follows:
In the Court of Oyer Terminer of Camden County
(September Term, A.D. 1933)
Camden County to wit: The grand inquest of the State of New Jersey and for the body of the county of Camden, upon their respective oath; present that H---- B---- late of the city of Camden, in the said county of Camden, on the Eighth day of October, in the year of our Lord one thousand nine hundred and thirty-three at the city and county aforesaid, and within the jurisdiction of this court, in and upon one M---- M----, in the peace of God and this State then and there being, feloniously did make an assault, and him, the said M---- M----, then and there feloniously did kill and slay.
The cases cited by the majority in support of their determination that the offense as defined by the New Jersey statute is not one involving moral turpitude are not determinative of the issue here involved. The indictment clearly shows that while the defendant was making a felonious assault that he then and there feloniously did kill and slay.
In theMatter of Statev.Harrison,107 N.J.L. 213(1931), the defendant there omitted or failed to do his duty. The indictment was predicated upon a grade crossing accident in Belview, N.J. The defendant was employed as a crossing gateman. Gross negligence was charged in that the defendant failed to lower the crossing gates for an approaching train as a result of which the decedent drove upon the tracks and was struck and killed by the train. The appellate court found that such failure of duty on the part of a crossing watchman justified a finding of gross negligence and the defendant's conviction was affirmed. The case of theStatev.O'Brienalso involves an omission of the defendant in failing to close a siding switch as a result of which a wreck occurred and one passenger was killed. There, too, gross negligence was charged.
Obviously the case at bar is distinguishable from the precedents cited by the majority as hereinabove referred to and it is my opinion that the case of theStatev.Thomas,65 N.J.L. 598, is likewise inapplicable here because of the facts and circumstances therein enumerated.
In the case at bar the alien in the commission of a felonious assault did feloniously kill and slay another. The offense is somewhat similar to several cases decided by this Board heretofore. This Board has held that an assault with intent to commit manslaughter in Florida is an offense involving moral turpitude. SeeMatter of J----,Page 499A-7712748 decided February 1946 (2 IN Dec. 477). In theMatter of B----,A-3748822 (unreported), this Board held that an assault, second degree, with intent to kill committed in Montana was an offense involving moral turpitude.
In theMatter of J----hereinabove referred to the Florida statute was being interpreted and in that case we said that the statute in substance included both voluntary and involuntary manslaughter as that existed at common law and there the statute is so stated that the two crimes are inseparable. We also said "* * * 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 admits to only involuntary manslaughter, voluntary manslaughter involving moral turpitude because it requires an evil intent or depraved motive to take human life, (Matter ofD----,56137/380, October 29, 1943;Matter of S----,56131/71, August 21, 1943 (1 IN Dec. 519);Alessiov.Day,42 F. (2d) 217(C.C.A. 2d 1930))."
The majority has attempted to distinguish the ruling of the Attorney General in theMatter of S----,A-5530239,2 IN Dec. 559-569, July 18, 1947, andMatter of D----,A-6124908, October 17, 1947 (3 IN Dec. 51). It is my contention, however, that specifically the question there determined is applicable in the present case.
In the State of New York where different degrees of manslaughter are defined by statute the offense has been held to involve moral turpitudePilliszv.Smith,46 F. (2d) 769(C.C.A. 7, 1931).
After careful consideration of the indictment and the New Jersey statute here involved, it is my conclusion that the offense committed by the subject alien is one involving moral turpitude and accordingly the appeal from the decision of the Commissioner of Immigration and Naturalization should be dismissed.Page 500
- Sec. 2: 188-11. Allegations in indictment for murder and 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. ↩
- Sec. 2: 138-5 entitled "Manslaughter is merely a penalty statute." It reads as follows:
"Any person who shall commit the crime of manslaughter shall be punished by fine not exceeding $1,000, or imprisonment at hard labor or otherwise not exceeding 10 years, or both." ↩ - Also seeStatev.Biango,75 N.J.L. 284,68 A. 125(November 11, 1907);Statev.Zellers,7 N.J.L. 220;Statev.Blaine,104 N.J.L. 325(1928); 137 A. 829. ↩
- Statev.Johnson,30 N.J.L. 185;Commonwealthv.Blood,70 Mass. 31, 4 Gray 31;Statev.O'Brien(supra). ↩
- 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 Gola,7 F. Supp. 194(D.C., R.I., 1934). ↩