Opinion · United States Board of Immigration Appeals

IN THE MATTER OF N----, 2 IN Dec. 201 (BIA 1944)

IN THE MATTER OF N----. In DEPORTATION Proceedings., 2 I. & N. Dec. 201 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1944)

Type: Opinion
Court: United States Board of Immigration Appeals
Jurisdiction: Federal
Date: 1944-09-16
Topic: general

IN THE MATTER OF N----, 2 IN Dec. 201 (BIA 1944) IN THE MATTER OF N----. In DEPORTATION Proceedings. A-1779952 (56170/750)Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board September 16, 1944. Crime involving moral turpitude — Assault and battery with dangerous weapon — Massachusetts. 1.

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UpLaw has not yet analyzed IN THE MATTER OF N----, 2 IN Dec. 201 (BIA 1944). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF N----,2 IN Dec. 201(BIA 1944)

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

A-1779952 (56170/750)

Board of Immigration Appeals

Executive Office for Immigration Review

U.S. Department of Justice

Decided by the Board September 16, 1944.

Crime involving moral turpitude — Assault and battery withdangerous weapon — Massachusetts.

1. Assault and battery with a dangerous weapon not being defined by statute in Massachusetts, recourse must be had to the common law definition in order to determine whether this crime is one which involves moral turpitude.

2. Where the dangerous character of the weapon is shown (a razor) and the intent to injure is clearly present, no other conclusion can be reached but that moral turpitude inheres in this crime of battery, as well as assault with a dangerous weapon, upon the victim.

CHARGES:

Warrant: Act of 1924 — No immigration visa.

Act of 1917 — Crime prior to entry-conspiracy to break and enter with intent to commit larceny.

Act of 1917 — Sentenced for crime committed within 5 years after entry-assault and battery with a dangerous weapon: razor.

Act of 1917 — Sentenced more than once for crimes committed subsequent to entry-assault and battery with a dangerous weapon; injuring a person for the purpose of stealing.

BEFORE THE BOARD

Discussion:Warrant of arrest in this case was issued February 4, 1944, served and hearing accorded the alien February 23, 1944. The Central Office concurs in the recommendation of the Presiding Inspector that the alien be deported to Canada.

This is the case of a native and citizen of Canada, single, 42 years of age, who last entered the United States in March 1927, at an unknown point on the Canadian border. To gain admission he presented his discharge from the United States Navy stating his birth place as Detroit, Mich. He testified that he was under the impression that he was a citizen of the United States by reason of his service in our Navy. He states that he came in for a visit and had no plans as to how long he would stay. From the fact that he has remained here continuously for the past 17 years it may fairly be assumed that he was entering for an indefinite period. He had no visa and had been absent in Canada for about 2 years prior to his last entry.Page 202

The record contains a copy of the indictment of the respondent in the Superior Court for Suffolk County, Mass., charging that he, E---- McL----, and V---- W. H----, on January 8, 1924, conspired together to break and enter the shop of the Rose Tea Co., with intent then and there to commit larceny. He was convicted January 25, 1924, upon this indictment and sentenced to imprisonment for 5 years and 1 day. The moral turpitude attaching to the offense of which the respondent was convicted inheres in the intent to commit larceny which accompanied the breaking and entering. As has been previously held the moral turpitude involved in a conspiracy is derived from the nature of the offense the conspirators agree to commit and not from the conspiracy alone (Matter of P----,56113/112, October 12, 1943. Larceny has always been held to involve moral turpitude.U.S. exrel Rizziov.Kenney(D.C. Conn. 1931)50 F. (2d) 418). Therefore, it necessarily follows that the crime for which the alien was convicted January 25, 1924, is a crime involving moral turpitude.

The record also contains a copy of the judgment of conviction of the respondent in the Superior Court for Suffolk County, Mass., of the crime of assault and battery with a dangerous weapon, to wit: Razor, committed March 15, 1928, and his sentence of 4 to 6 years' imprisonment in the State Prison of Massachusetts at hard labor.

Since in Massachusetts the offense of assault with a dangerous weapon has not been defined by statute we must advert to the common-law definition in order to determine the moral turpitude which may attach to this crime. Section 15 (a), c. 265, General Laws of Massachusetts, merely provides for its punishment. The crime of assault is usually defined as an attempt or offer with force or violence to do a corporal hurt to another. An attempt consists of an act done by the accused with a specific intent to commit a particular crime by means apparently reasonably adapted to the accomplishment of that end and under circumstances which make its accomplishment apparently possible, which act goes beyond mere preparation and carries the project forward within dangerous proximity of the criminal end sought to be attained, but nevertheless falls short of consummation of the intended crime (Miller on Criminal Law, p. 96).

A battery is an assault whereby any force, however slight, is actually applied to a person of another directly or indirectly and hence is a consummation of the attempt to do a corporal hurt to another.

Therefore to constitute the crime of assault with a dangerous weapon there must be an unlawful attempt with a weapon, deadly or dangerous as a matter of law, or capable of being used in a deadly or dangerous manner to inflict injury, coupled with the present actual ability to do so. In the instant case the respondent has been convicted of assault and battery with a dangerous weapon. The attempt necessaryPage 203to constitute an assault was consummated when the battery was committed upon his victim.

The question of intent in cases of assault is discussed in several Massachusetts cases.Commonwealthv.Randall,17 Mass. 36(1855) is cited with approval in the general discussion of intent in several legal publications. In this case a schoolmaster was charged with making an assault upon one of his pupils with a ferrule, striking divers grievous and dangerous blows upon her. The court in its decision said:

If in inflicting punishment upon his pupil he went beyond the limit of moderate castigation and either in the mode or degree of castigation was guilty of any unreasonable and disproportionate violence or force, he was clearly liable for such excess in a criminal prosecution.

It is undoubtedly true that, in order to support an indictment for an assault and battery, it is necessary to show that it was committed ex intentione, and that if the criminal intent is wanting the offense is not made out, but this intent is always inferred from the unlawful act. The unreasonable and excessive use of force on the person of another being proved, the wrongful intent is a necessary and legitimate conclusion in all cases where the act was designedly committed It then becomes an assault and battery because purposely inflicted without justification or excuse.

In the case ofCommonwealthv.Hersey(84 Mass. 178), the defendant administered strychnine to a young woman who sought to obtain from him a drug to produce an abortion. The first two counts of the indictment contained no averment that he administered the poison with intent to kill but in its decision the court said:

There can be no doubt that, in every case, to render a party responsible for a felony, a vicious will or wicked intent must concur with a wrongful act. But it does not follow that because a man cannot commit a felony unless he has an evil or malicious mind or will, it is necessary to aver in apt and technical words that a defendant committed a criminal act, without alleging the specific intent with which it was done. In such case, the act necessarily includes the intent. Thus in charging the crime of burglary, it is not necessary to aver that the breaking and entering a house was done with an intent to steal. It is sufficient to charge the breaking and entering and an actual theft by the defendant. The reason is, that the fact of stealing is the strongest possible evidence of the intent, and the allegation of the theft is equivalent to an averment of that fact. * * * So in an indictment for murder by blows or stabs with a deadly weapon, it is never necessary to allege that they were inflicted with an intent to kill or murder. The law infers the intent from proof that the acts were committed and that death ensued. The averment, therefore, of the criminal act comprehends the evil or wicked intention with which it was committed. The true distinction seems to be this: When by the common law or by the provision of a statute aparticularintention is essential to an offense, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision and to support the allegation by proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful criminal act, the evil intention will be presumed andPage 204need not be alleged, or if alleged, it is a mere formal averment which need not be proved.

In such case, the intent is nothing more than the result which the law draws from the act, and requires no proof beyond that which the act itself supplies. * * *

In Massachusetts, as we have said, the courts must look to the common-law definition of this crime.¹

We are in no doubt as to the dangerous character of the weapon used in the assault, a razor, as this is clearly set out in the indictment. Nor are we in doubt as to whether there was an intent to injure. The respondent was convicted of having committed a battery, as well as an assault with a dangerous weapon, upon his victim which makes his purpose clear. No conclusion can be reached save that moral turpitude inheres in this crime and we so hold.

The record also contains a copy of an indictment charging that on December 22, 1930, the respondent "with intent to commit larceny did injure L---- B---- for the purpose of stealing from a building that was a depository of money and other valuables," and his sentence April 8, 1931, following conviction, to imprisonment for 20 to 30 years in the Massachusetts State Prison at hard labor. Involving as it does an attempt to commit larceny, this crime also is one involving moral turpitude.

As the charge that the alien has been sentenced more than once subsequent to entry for a crime involving moral turpitude is supported by the record of two sentences for crimes falling within this category, it is sustained.Findings of Fact:Upon the basis of all the evidence, it is found:

(1) That the respondent is an alien, a native and citizen of Canada;

(2) That the respondent last entered the United States in March 1927 at an unknown point on the Canadian border;

(3) That the respondent did not have an immigration visa at the time of his entry;

(4) That the respondent entered the United States for an indefinite stay;

Page 205

(5) That the respondent was convicted January 25, 1924, in the Superior Court for Suffolk County, Mass., of conspiracy to break and enter with intent to commit larceny;

(6) That the respondent was sentenced on April 24, 1928, to imprisonment for 4 to 6 years in the State Prison of Massachusetts for assault and battery with a dangerous weapon, committed March 15, 1928;

(7) That the respondent was sentenced April 8, 1931, to imprisonment for 20 to 30 years in the Massachusetts State Prison for injuring a person for the purpose of stealing, committed December 22, 1930.

Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under sections 13 and 14 of the Immigration Act of 1924 the respondent is subject to deportation on the ground that, at the time of his last entry, he was an immigrant not in possession of an immigration visa;

(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been convicted prior to entry of a crime involving moral turpitude, to wit: Conspiracy to Break and Enter with Intent to Commit Larceny;

(3) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years after entry, to wit: Assault and Battery with a Dangerous Weapon — Razor;

(4) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been sentenced more than once to imprisonment for a term of 1 year or more for the commission subsequent to entry of a crime involving moral turpitude, to wit: Assault with a Dangerous Weapon and Injuring for the Purpose of Stealing;

(5) That under section 20 of the Immigration Act of 1917, as amended the respondent is deportable to Canada at Government expense.

Other Factors:In a communication, dated July 16, 1944, the alien states that he has been granted a parole effective August 15, 1944, and that he is desirous that his deportation to Canada be expedited.Order:It is ordered that the alien be deported to Canada at Government expense on the charges stated in the warrant of arrest.It is further ordered,That execution of the warrant of deportation be deferred until the alien is released from imprisonment.Page 206

Assault with a dangerous weapon is not defined under the General Laws of Oregon. As in Massachusetts the court must look to the common law definition of this crime. InStatev.Godfrey(17 Oreg. 300), the court held, "I think these authorities clearly show that to constitute an assault there must be an intentional attempt to do injury to the person of another by violence and that such attempt must be coupled with a present ability to do the injury attempted. * * *"

And in another Oregon case,Statev.Kelly(41 Oreg. 20), the court held, "In accordance with the general rule as to intent in criminal assaults there must be an intent to injure in order that there shall be an assault with a dangerous or deadly weapon." ↩