Opinion · United States Board of Immigration Appeals

IN THE MATTER OF M----, 2 IN Dec. 871 (BIA 1947)

2 IN Dec. 871

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1947-04-29
Topic
general

IN THE MATTER OF M----, 2 IN Dec. 871 (BIA 1947) IN THE MATTER OF M----. In DEPORTATION Proceedings. 4783029 (56081/931).Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board April 29, 1947. Crime involving moral turpitude — Breaking prison — Section 12, chapter 94, Laws of New Jersey (1931). The offense of breaking prison, in violation of section 12, chapter 94, Laws of New Jersey (1931), does not involve moral turpitude since it does not require the element of force or fraud.

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IN THE MATTER OF M----,2 IN Dec. 871(BIA 1947)
IN THE MATTER OF M----. In DEPORTATION Proceedings.
4783029 (56081/931).
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board April 29, 1947.
Crime involving moral turpitude — Breaking prison — Section 12,chapter 94, Laws of New Jersey (1931).

The offense of breaking prison, in violation of section 12, chapter 94, Laws of New Jersey (1931), does not involve moral turpitude since it does not require the element of force or fraud.

CHARGES:

Warrant: Act of 1917 — Sentenced more than once subsequent to entry for crimes involving moral turpitude, to wit: Arson and attempted arson; Assault and battery, and breaking prison.

Lodged: Act of 1917 — Sentenced for crime committed within 5 years after entry to wit: Receiving stolen goods.

Act of 1917 — Sentenced more than once subsequent to entry for crimes involving moral turpitude, to wit: Arson and attempted arson; and breaking prison.Discussion:The respondent testified that he is a native and citizen of Greece, aged 38, and last entered the United States as a stowaway at the port of Boston, Mass., during approximately September or October 1922 or 1923 aboard the S.S.KaiserWilhelm.

The evidence of record establishes that the respondent was convicted and sentenced to imprisonment for a year or more for the offenses set forth above.

In arguing for cancellation of these proceedings, counsel maintains:
(a) That the respondent has been pardoned for the offense of receiving stolen goods by virtue of section 181, act of March 31, 1860, Public Laws of Pennsylvania, 382; Purdon's Statutes 893;
(b) that the offense of assault and battery does not involve moral turpitude;
(c) that in considering whether the offense of breaking prison involves moral turpitude, we may not go beyond the indictment and the applicable statute;
(d) that the offense of breaking prison does not involve moral turpitude.


We agree with counsel that the respondent must be considered as having been pardoned for the offense of receiving stolen property, in accordance with section 181, act of March 31, 1860, Public Laws ofPage 872Pennsylvania, 382,1since he completed the sentence imposed upon him therefor and since he was released from parole June 14, 1931,2thus enduring punishment prior to the repeal of the legislative pardon act.3Accordingly, this particular charge is not applicable.4

We also agree with counsel that the offense of assault and battery in this case is not one involving moral turpitude. The pertinent indictment returned December 7, 1931, so far as pertinent hereto, charged —

"* * * that the (respondent) did on November 10, 1931, with force and arms beat, wound, and ill treat * * *."

The nature of the assault is not shown and no weapon of any kind or instrument was involved, so far as the indictment indicates, a vital factor, we believe, in deciding that issue.5We cannot supply that element by bringing in mattersaliunde,nor can we imply the element of violence or the use of a dangerous weapon concerning which the indictment is silent.6For example, it has been determined that an assault with an unknown weapon does not involve moral turpitude.7Counsel concedes that the offense of arson of which the respondent was convicted is one involving moral turpitude. We so find.8But this finding alone will not justify deportation, since, as indicated, the statute9governing the ground of proposed deportationPage 873in this case requires that an alien be sentenced to imprisonment for a year or more for offenses involving moral turpitude. Therefore, it must be established that the conviction for breaking prison is an offense involving moral turpitude.

We are of the opinion that the offense of breaking prison in this case is not one involving moral turpitude. Section 12,10chapter 94, Laws of New Jersey (1931), approved by the New Jersey legislature April 13, 1931, in effect at the time of the respondent's commission of the offense of breaking prison is, as will be noted from a reading thereof, broad in its wording and does not require the element of force or fraud, as the 1934 amendment does. It is true that the indictment contains the words, "with force and arms," but it is silent as to the nature or character of the assault committed, if any. The New Jersey authorities have held that such averments, when not required by the statute, may be considered surplusage.11

We have held a conviction under section 12,supra,did not involve moral turpitude.12That case involved an escape from custody of the sheriff, and the complaint was silent as to any element of force or violence. There too, however, the offense was committed prior to the 1934 amendment to section 12 of the New Jersey Statutes covering escapes, prison breaking, etc. We see no distinction from the standpoint of moral turpitude between that case and the present one.13

On April 1, 1947, (71 F. Supp. 534), the United States District Court, Eastern District of Pennsylvania, inU.S. ex rel. PhillipManzellaPage 874v.Karl I. Zimmerman,District Director, Philadelphia, involving a similar statute (Penn. act of March 31, 1860, P.L. 382, sec. 3) where the alien was convicted of breaking prison and escaping, held the offense did not involve moral turpitude. The court employed substantially similar reasoning. It also pointed out that the act was merely mala prohibitum and not inherent in the concept of moral turpitude, since the action springs from the basic, although wrong, desire of the human being for liberty of action and freedom from restraint; and that the statute comprehends a person who uses the minimum amount of force necessary to escape, for example, by prying open the bars of a window or forcing the lock of a door, but who meets no opposition on the part of his jailers and uses no artifice, threats or other violence.

Thus we conclude that the offense of breaking prison in this case is not one involving moral turpitude.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 Greece;
(2) That the respondent last entered the United States at the port of Boston, Mass., during September or October 1922 or 1923;
(3) That the respondent was convicted on June 14, 1928, of the offense of receiving stolen goods;
(4) That the respondent, during 1930, in Morristown, N.J., was convicted of the offense of aiding and abetting in attempt at arson, for which he was sentenced to a term of 3 years in the New Jersey State Prison;
(5) That the respondent, during 1931, was convicted of the offense of breaking prison for which he received a sentence of 16 months;
(6) That during 1931 the respondent was sentenced to a term of 16 months for the offense of assault and battery.
Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the respondent has been pardoned of the offense of receiving stolen goods by virtue of section 181, act of March 31, 1860, Public Laws of Pennsylvania 382;
(2) That the offense of breaking prison in this case does not involve moral turpitude;
(3) That the offense of assault and battery does not involve moral turpitude;
(4) That the sentence to imprisonment for a term of 1 year or more for the offense of arson is not, of itself, sufficient to justify deportation.
Page 875
(5) That under section 19, Immigration Act of 1917, the respondent is not subject to deportation on any of the charges stated above.
Order:It is ordered that the outstanding warrant of arrest and delivery bond in the sum of $1,000 be canceled and these proceedings closed.Page 876
  1. Sec. 181, act of March 31, 1860, Public Laws of Pennsylvania, 382 (sec. 893, title 19 of Purdon's Statutes) provided, in part:

    "Where any person hath been convicted or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted * * *." ↩
  2. See letter from Chief Probation Officer, Court of Quarter Sessions, Philadelphia, Pa., dated September 22, 1943. ↩
  3. The act of March 31, 1860, was repealed September 1, 1939.Matter of S----,55845/168 (May 20, 1946), approved by the Attorney General May 27, 1946; overrulingMatter of R----,56011/812 (Oct. 8, 1942). [SeeU.S. ex. rel. Forinov.Bromberg,61 F. Supp. 1021(appeal dismissed for lack of prosecution); later writ by Forino,U.S. ex rel. Forinov.Garfinkel,69 F. Supp. 846; reversed166 F. (2d) 887(C.C.A. 3d, 1948).] ↩
  4. Sec. 19, Immigration Act of February 5, 1917, as amended. Up to the present time there is no indication in the record that respondent has been pardoned for either the offense of arson or breaking prison. ↩
  5. Matter of B----,56018/361 (June 17, 1941);Matter ofR----,56065/487 (Nov. 20, 1942);Matter of M----,56050/886 (Apr. 3, 1942). ↩
  6. U.S. ex rel. Zaffaranov.Corsi,63 F. (2d) 757;U.S.ex rel. Valentiv.Karnuth,1 F. Supp. 379(1932);Matter ofB----, supra; Matter of R----, supra. ↩
  7. Matter of B----, supra,approved by the Attorney General. ↩
  8. Johnson et al.v.U.S. ex rel. Pepe,28 F. (2d) 810(C.C.A. 2d 1928; Memorandum of Solicitor of Labor, dated April 29, 1926. ↩
  9. Sec. 19, Immigration Act of February 5, 1917, as amended. ↩
  10. "Any person, who being imprisoned in any jail, prison, prison farm, reformatory or other correctional or penal institution, for any crime, or who being in the custody of any such penal or correctional institution, or being in custody and control of the sheriff or other officer, having been indicted for or convicted of any offense or sentenced to imprisonment on such conviction or committed or detained in any prison, prison farm, jail, reformatory or other correctional or penal institution on any criminal charge or held awaiting extradition, shall break from any jail, prison, prison farm, reformatory or other correctional or penal institution, and escape, or escape from the custody or control of the sheriff or other officer, or shall break jail, prison, prison farm, reformatory or other correctional or penal institution, although no escape be actually made, or shall leave the buildings or grounds of any jail, prison, prison farm, reformatory or other correctional or penal institution, before being lawfully discharged, without the consent of the superintendent or officer in charge thereof, shall be guilty of a misdemeanor" (Sec. 12, ch. 94, Laws of New Jersey, 1931). ↩
  11. Statev.Yanetti,101 N.J.L. 88;Statev.Kern,51 N.J.L. 259;Statev.Whalen,11 S.W. 576. ↩
  12. Matter of Z----,56933/458 (May 20, 1942). ↩
  13. Cf. Memorandum of Solicitor of Labor, April 29, 1926; Board of Review files, 55911/687 (Apr. 20, 1938), 55913/488 (June 6, 1936), 55865/921 (Feb. 19, 1935), holding jail-breaking, accompanied by force or fraud, involves moral turpitude. ↩