Opinion · United States Board of Immigration Appeals
IN THE MATTER OF G----, 2 IN Dec. 235 (BIA 1945)
2 IN Dec. 235
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1945-01-13
- Topic
- general
IN THE MATTER OF G----, 2 IN Dec. 235 (BIA 1945) IN THE MATTER OF G----. In EXCLUSION Proceedings. 56158/190Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board January 13, 1945. Crime involving moral turpitude — Deposit "slug" in coin box — Section 1293 (c) of the Penal Law of the State of New York — Retaining stolen goods knowing them to be stolen — Section 399 of the Canadian Criminal Code. 1. The offense of depositing a metal disc in a coin box, in violation of section 1293 (c) of the Penal Law of the State of New York (1935), is not one which involves moral turpitude. 2.
Citator
UpLaw has not yet analyzed IN THE MATTER OF G----, 2 IN Dec. 235 (BIA 1945). The absence of a flag is not a finding that it is good law.
IN THE MATTER OF G----,2 IN Dec. 235(BIA 1945)
IN THE MATTER OF G----. In EXCLUSION Proceedings.
56158/190
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board January 13, 1945.
1. The offense of depositing a metal disc in a coin box, in violation of section 1293 (c) of the Penal Law of the State of New York (1935), is not one which involves moral turpitude.
2. The offense of retaining stolen goods knowing them to be stolen, in violation of section 399 of the Canadian Criminal Code, was held to involve moral turpitude, where the evidence showed the thief intended permanently to deprive the rightful owner of the goods.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission and convicted of crime involving moral turpitude, to wit: Violation of section 1293 (c) of the Penal Law of New York (depositing metal disc in coin box), and violation of section 399 of Canadian Criminal Code (retaining stolen goods, knowing the goods to be stolen).
BEFORE THE BOARD
The appellant was arrested and charged with violation of section 1293 (c) of the Penal Law of the State of New York on September 30, 1935, in the city of New York. Upon arraignment on that day before a city magistrate, he pleaded guilty and was convicted on such plea. Sentence, however, was suspended. The appellant had gained admission to a subway station of the Interborough Rapid Transit Co. by depositing in the turnstile a metal disc instead of a nickel. The statute under which the appellant was convicted read as follows at the time of his conviction:
Any person who shall operate or cause to be operated or who shall attempt to operate or attempt to cause to be operated any automatic vending machine, slot machine, coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, by means of a slug or of any false, counterfeited, mutilated or sweated coin, or by any means, method, trick or device whatsoeverPage 236not lawfully authorized by the owner, lessee or licensee of such machine, coin-box telephone or receptacle; or who shall take, obtain or receive from or in connection with any automatic vending machine, slot machine, coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service, or of any musical instrument, phonograph or other property, without depositing in and surrendering to such machine, coin-box telephone or receptacle lawful coin to the amount required therefor by the owner, lessee or licensee of such machine, coin-box telephone or receptacle, shall be guilty of a misdemeanor and punishable by imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both fine and impr sonment.1
The above quoted statute does not, by its terms, require any criminal intent or even knowledge on the part of the wrongdoer. No reported cases could be found which discussed the elements of this offense requisite to conviction. Accordingly, we addressed an inquiry to the Attorney General of the State of New York and requested his advice as to whether knowledge or criminal intent was required to be proved by the people or whether mere use or attempted use, including the accidental or inadvertent use of a slug or counterfeit coin, could be the basis of a conviction under this statute as a matter of law. The Attorney General of the State of New York forwarded to us a copy of an informal opinion previously sent to the Department of State on February 26, 1941, regarding the same section of the Penal Law. The pertinent portions of that opinion are as follows:
Other than the inference to be drawn from a conviction itself, there is no evidence available of legislative intent to make "fraudulent intent" an element of proof in such cases.
* * * * * * *
From the search we have made we can find no material which may shed any light on the construction to be given to the words of the statute. From the language of the act itself, however, it would seem to follow that a verdict of guilty or a conviction would imply the use of such a coin, device, trick; or some use not "lawfully authorized by the owner." We cannot, however, advise that a "fraudulent intent" other than what might be inferred from the conviction itself is necessarily a part of the proof in such cases.
From the statute itself and the quoted portions of the opinion of the Attorney General of the State of New York it is clear that criminal intent is not an element of the crime and the mere use of any coin or device not authorized by the owner of the machine is sufficient for conviction. It has been held that moral turpitude inheres in the intent;U.S. ex rel. Meyerv.Day,54 F. (2d) 336(C.C.A. 2d, 1931);U.S. ex rel Shladzienv.Warden, etc.,45 F. (2d) 204(E.D. Pa. 1930). Section 1293 (c) of the Penal Law of New York requires noPage 237intent. In the absence of that element, we cannot say that the offense defined is one involving moral turpitude.
The moral turpitude attached to the crime defined by section 1293 (c) of the Penal Law of New York was once before considered by this Board in connection with an application for the advance exercise of the seventh proviso to section 3 of the Immigration Act of 1917, inMatter of B----,56019/839 (Mar. 26, 1941). We then held that the offense did involve moral turpitude in that it contained an element of "fraud." The statute, however, requires no intent to defraud, and fraud is not, therefore, an element to be proved or one that is necessarily inherent in the offense. To the extent thatMatter of B----, supra,holds that section 1293 (c) of the Penal Law of the State of New York is a crime involving moral turpitude, it is overruled.
The appellant was also convicted on November 18, 1942, in Windsor, Ontario, Canada, of the crime of retaining stolen goods knowing them to be stolen. His conviction followed a plea of guilty and he was sentenced to a term of imprisonment of 6 months, followed by an indeterminate term of 3 months thereafter. This offense was committed in violation of section 399 of the Canadian Criminal Code which reads as follows:
Every one is guilty of an indictable offence and liable to fourteen years' imprisonment, who receives or retains in his possession anything obtained by any offence punishable on indictment, or by any acts wheresoever committed, which, if committed in Canada would have constituted an offence punishable upon indictment, knowing such thing to have been so obtained.
It will be noted that this crime is broad and embraces a variety of offenses. It is not limited to receiving or retaining stolen property but is applicable as well to receiving or retaining property obtained by any offense punishable by indictment. It doesnot,however, require knowledge on the part of the receiver that the goods were obtained unlawfully. We considered the moral turpitude involved in this offense inMatter of R----,56158/517 (June 3, 1944). After pointing out the broad scope of the statute, we concluded that some offenses committed thereunder would involve moral turpitude and that others would not, depending on the indictable offense under which the goods were originally obtained.
In the instant case the goods retained by the appellant were obtained by theft, an indictable offense. Theft in Canada is itself a crime which may or may not involve moral turpitude depending upon whether the intent of the theft was to deprive the owner of his property permanently or temporarily (sec. 347 of the Canadian Criminal Code;Matter of W----,56143/310 (June 15, 1943)). However, in determining which intent motivated the theft, we may go beyond the Canadian statute and consider the record of the convictions or the admissionsPage 238of the alien (Matter of T----,56156/249, Op. Atty. Gen., 2/24/44). The appellant here testified that he purchased the stolen goods from the thief. The sale of goods by the original thief is an act inconsistent with an intent to deprive temporarily and is only consistent with an intent to deprive the owner of his property absolutely. Moral turpitude was, therefore, involved in the original theft and the appellant's retention of the goods with knowledge that it had been so obtained likewise involves moral turpitude. The appellant's testimony that he purchased the goods in good faith without knowledge that they had been stolen must be disregarded because he pleaded guilty at his trial and thereby conclusively established that he had such knowledge.
The appellant's exclusion is sustained only on the ground that he has been convicted of and admits the commission of the crime of retaining stolen goods, a crime involving moral turpitude.Findings of Fact:Upon the basis of all the evidence, it is found:
(1) That the appellant is an alien, a native and citizen of Canada;
(2) That the appellant is applying for admission to the United States as a visitor;
(3) That the appellant was convicted upon his plea of guilty of a violation of section 1293 (c) of the Penal Law of the State of New York on September 30, 1935, that is, for having deposited a metal disc in a coin-box;
(4) That the appellant was convicted on his plea of guilty in Windsor, Ontario, Canada, on November 18, 1942, of the crime of retaining stolen goods in violation of section 399 of the Criminal Code of Canada.Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of February 5, 1917, the appellant is not inadmissible on the ground that he has been convicted of or admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Depositing a metal disc in a coin box in violation of section 1293 (c) of the Penal Law of the State of New York;
(2) That under section 3 of the Immigration Act of February 5, 1917, the appellant is inadmissible on the ground that he has been convicted of and admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Retaining stolen goods in violation of section 399 of the Criminal Code of Canada.Other Factors:The appellant maintains a home in Canada with his wife and two minor children. He seeks temporary admission to the United States for several reasons. His wife, who is apparentlyPage 239a citizen of the United States, is employed in the United States and he wishes to call for her at her place of employment and on occasion to seek entertainment and diversion in the United States, as well as to visit relatives here. In addition, the appellant is employed as a locomotive fireman by the New York Central Railroad and would be in a position to secure more desirable and perhaps more lucrative runs if he were admissible to the United States and could work on those trains crossing the border. The appellant was deported twice from the United States, once in 1931 and again in 1938, both times on documentary and technical grounds. On August 12, 1943, the Immigration and Naturalization Service granted the appellant permission to reapply for admission after previous deportation primarily because of the nature of his employment.
Under all the circumstances presented by the record, we shall authorize the appellant's temporary admission with border crossing privileges under the ninth proviso to section 3 of the Immigration Act of February 5, 1917, notwithstanding his inadmissibility on the criminal ground heretofore discussed.Order:It is ordered that the appellant be admitted to the United States as a visitor with local border crossing privileges under the ninth proviso to section 3 of the Immigration Act of February 5, 1917, notwithstanding that he is inadmissible as a person who has been convicted of and who admits the commission of a crime involving moral turpitude, to wit: Receiving stolen property in violation of section 399 of the Criminal Code of Canada. The foregoing authority shall be valid for a period of 1 year, no single visit to exceed 29 days.Page 240
- The word "misdemeanor" was amended to read "offense" by chapter 883 of the laws of New York, 1941, effective April 29, 1941. ↩