IN THE MATTER OF J----, 2 IN Dec. 99 (BIA 1944)

The cause of exclusion is sustained only as to the visa and passport grounds.The offense of sale ofintoxicating liquors to an Indian does not involvemoral turpitudeand, since the alien is in good health, is employed and is not shown to have been a recipient of public aid of any kind in the past, it cannot be said that he is likely to become a public charge under the law. [Italics supplied.]

§ 241. Intoxicating liquors; sale to Indians or introducing into Indian country. No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years, and by fine of not more than $300 for each offense.

Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor including beer, ale, and wine, or any ardent or otherPage 101intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than $100 for the first offense and not less than $200 for each offense thereafter:Provided,however,That the person convicted shall be committed until fine and costs are paid. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the War Department or any officer duly authorized thereunto by the War Department.

We do not regard every violation of a prohibition law as a crime involving moral turpitude. No doubt it is the solemnly declared policy of this country that liquor shall not be made, sold, or possessed, but the standard set up in sections 3 and 19 of the act of 1917 (8 U.S.C.A. §§ 136, 155) was purposely narrower than that. All crimes violate some laws; all deliberate crimes involve the intent to do so. Congress could not have meant to make the willfulness of the act a test; it added as a condition that it must itself be shamefully immoral. There are probably many persons in the United States who would so regard either the possession or sale of liquor; but the question is whether it is so by common conscience, a nebulous matter at best. While we must not, indeed, substitute our personal notions as the standard, it is impossible to decide at all without some estimate, necessarily based on conjecture, as to what people generally feel. We cannot say that among the commonly accepted mores the sale or possession of liquor as yet occupies so grave a place; nor can we close our eyes to the fact that large numbers of persons, otherwise reputable, do not think it so, rightly or wrongly.

Before the enactment of statutes on the subject, the making or possession of wine for the use of the maker as a beverage was not generally regarded as morally wrong. From the fact that those acts have by statute been madePage 103punishable as crimes it does not follow that they are inherently immoral, or involve moral turpitude within the meaning of the provision in question. * * * We conclude that the deportation order was not sustainable * * *.

It seems clearly deducible from the above-cited authorities that the words "moral turpitude" had a positive and fixed meaning at common law, and that the illegal sale of intoxicating liquors, not being an offense punishable at common law, does not come within the definition of a crime involving moral turpitude. In a statute using a word, the meaning of which is well known, and which has a definite sense at common law, the word will be restricted to that sense.

Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being punishable at common law. They are also of the description mala prohibita,as there is no inherent immorality insuch act,and their illegality lies only in the fact of their being positively prohibited. [Italics supplied.]

By statute the manufacture, sale, or transportation of intoxicating liquors, the importation or exportation thereof, within the United States and all territoryPage 104subject to the jurisdiction thereof, for beverage purposes, is made an offense in this country. Such offense does not involve moral turpitude.

The sale of intoxicating liquor to an Indian under charge of an Indian superintendent or agent is a penal offense,25 U.S.C. § 241. The statute does not provide in express language or by fair intendment that the act be knowingly or wilfully done, and therefore a sale to an Indian in charge of a superintendent or agent constitutes an offense without regard to whether the seller may believe that he is of some other nationality (Hayesv.UnitedStates,112 F. (2d) 676,677(C.C.A. 10th, 1940)).¹³See also: Cohen, Handbook of Federal Indian Law (1941), p. 355, note 40.

"The doing of the prohibited thing is made an offense, without regard to purpose or intent.Suchcrimes are in the nature of police regulations,imposing criminal penalties for their violation,without regard to purpose or intent."[Italics supplied.]

Within comparatively recent times, however, a growing number of police offenses involving no moral delinquency are being punished without proof of any guilty intent.

In general, offenses not requiring mens rea are the minor violations of laws regulating thesale ofintoxicating liquor,* * * violations of traffic or motor-vehicle regulations, or of general police regulations passed for the safety,Page 107health, or well-being of the communityand not ingeneral involving moral delinquency."[Italics supplied.]¹⁴

A statute of the United States (Rev. Stat. § 2139) makes it a crime to give a glass of whisky to an Indian under the charge of an Indian agent.Aconviction under this section would not be proof ofmoral turpitude,although the evidence. at the trial might disclose the fact that the whisky was given for the basest purposes.

(1) That the appellant is a native and citizen of Canada;

(2) That the appellant has applied for admission to the United States as a returning legally resident alien;

(3) That the appellant was admitted to the United States for permanent residence on October 31, 1923;

(4) That the appellant departed, in transit through Canada, for Alaska on May 7, 1943, for the purpose of accepting employment in Alaska;

(5) That the appellant did not complete his journey to Alaska;

(6) That the appellant is not in possession of an unexpired immigration visa or a passport;

(7) That the Department of State has waived visa and passport requirements with respect to the appellant;

(8) That the appellant is not a person likely to become a public charge;

(9) That the appellant was convicted in the United States District Court, Eastern District of Washington, on November 4, 1939, for having on October 8, 1939, sold, given away or disposed of one pint of alcohol to an Indian who was a ward of the Government;

(10) That the appellant was convicted in the United States District Court, Eastern District of Washington, on January 13, 1941, for having on November 9, 1940, sold, given away or disposed of one quart of whiskey to two Indians over whom the Government exercised guardianship.

(1) That under the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;

(2) That under the Passport Act approved May 22, 1918, as amended, and the act of February 5, 1917, the appellant is not inadmissible to the United States in that he did not present an unexpired passport or official document in the nature of a passport issued by the Government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive Order 8766;

(3) That under the act of February 5, 1917, the appellant is not inadmissible to the United States in that he is a person likely to become a public charge;

(4) That under the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Selling intoxicating liquor to Indians.