Opinion · United States Board of Immigration Appeals

IN THE MATTER OF O----, 3 IN Dec. 193 (BIA 1948)

3 IN Dec. 193

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1948-03-29
Topic
general

IN THE MATTER OF O----, 3 IN Dec. 193 (BIA 1948) IN THE MATTER OF O----. In DEPORTATION Proceedings. A-5912688Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by Board March 29, 1948 Crime involving moral turpitude — Aggravated assault — Assault with a deadly and dangerous weapon — Section 6195 of the General Statute of Connecticut — Evil intent — Manner and nature by which crime committed — Offense, Malum in Se (Overrules, 1 IN Dec. 446, distinguishes 1 IN Dec. 52). (See 3 IN Dec. 5; also see 2 IN Dec. 733.) The offense of assault with a deadly and dangerous weapon (not named) in violation of section 6195 of the General Statutes of Connecticut, involves moral turpitude.

Citator

UpLaw has not yet analyzed IN THE MATTER OF O----, 3 IN Dec. 193 (BIA 1948). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF O----,3 IN Dec. 193(BIA 1948)
IN THE MATTER OF O----. In DEPORTATION Proceedings.
A-5912688
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by Board March 29, 1948
Crime involving moral turpitude — Aggravated assault — Assaultwith a deadly and dangerous weapon — Section 6195 of theGeneral Statute of Connecticut — Evil intent — Manner andnature by which crime committed — Offense,Malum in Se(Overrules,1 IN Dec. 446, distinguishes1 IN Dec. 52). (See3 IN Dec. 5; also see2 IN Dec. 733.)

The offense of assault with a deadly and dangerous weapon (not named) in violation of section 6195 of the General Statutes of Connecticut, involves moral turpitude.

CHARGE:

Warrant: Act of 1917 — Sentenced more than once for crimes — (1) Aggravated assault and (2) Aggravated assault.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:This case presents an appeal from the order of the Acting Commissioner dated October 24, 1947, directing appellant's deportation to Poland on the charges set forth above.

The appellant, a native and citizen of Poland, 52 years of age, last entered the United States at the port of New York on September 17, 1912, for permanent residence.

On September 3, 1935, and January 2, 1939, respectively, appellant was convicted in Bridgeport, Conn., of aggravated assault, on separate complaints by the State's attorney, which respectively charged:
That on July 14, 1935, and October 10, 1938, the said M---- O---- did commit an assault with a deadly and dangerous weapon upon * * *1


As a result of said convictions, appellant was sentenced on September 18, 1935, and January 12, 1939, to the Connecticut State Prison to terms of not less than 1 nor more than 2 years, and not less than 1 nor more than 3 years, respectively.2

Section 6195 of the General Statutes of Connecticut, upon which the indictments in this case rest, reads:Page 194
Aggravated assault. Any person who shall make an assault upon another with any deadly or dangerous weapon shall be guilty of an aggravated assault and shall be fined not more than $500 or imprisoned not more than 3 years or both.


The sole issue presented by this record is whether a conviction under the pertinent statute involved connotes moral turpitude. We previously took a negative position (Matter of Z----,56065/532, Apr. 24, 1943),3but that view apparently has been rendered moot.

SeeMatter of G---- R----,4569802 (Sept. 25, 1946), approved by the Attorney General May 29, 1947, to the effect that a conviction under section 245,4California Penal Code, denouncing assault with a deadly weapon, involved moral turpitude, thus overruling a prior negative determination on the same point.5

The term "moral turpitude" is at best vague and indefinite. It has, however, generally been accepted as connoting an act of baseness, vileness, or depravity in the private and social duties owing to fellowmen, or society in general, contrary to accepted and customary rules (Ng Sui Wingv.United States.46 F. (2d) 755, C.C.A. Ill., 1931; 30 Op. Attorney General 95, 98 (1935)). In cases involving convictions or admissions of crime, in determining moral turpitude, the crime, as defined by statute, or applicable common law and as limited by the record of conviction, must inherently and necessarily involve an evil intent or depraved motive (U.S. ex rel. Shladzienv.Warden,45 F. (2d) 204(D.C. Pa., 1930);U.S. ex rel. Zaffaranov.Corsi,63 F. (2d) 757(C.C.A.N.Y., 1933)).

Simple assaults have generally been held not to involve moral turpitude, and likewise aggravated assaults where the use of a deadly or dangerous weapon is not an element, or where the statute does not require an intent to inflict bodily harm.6The basis for such holdings is that a specific, malicious intent to do bodily harm, or, in other words, a vicious motive, corrupt mind, or evil intent, as distinguished fromPage 195the general intent that is inherent in a simple assault, is not an essential or necessary element of these crimes.7

Intent is a question of fact to be proven like any other fact, by acts, conduct, and circumstances (Peoplev.Johns,131 Cal. 511;Fiskv.Inhabitants of Chester,74 Mass. (8Gray) 506;Hagertyv.Hagerty,186 Iowa 1329;Statev.Hair,37 Minn. 351). A crime is not committed if the mind of the person doing the act is innocent,"Actus non facit reum, nisi mens sitrea." Commonwealthv.Ober,286 Mass. 25.;Statev.Blaclock,167 P. 714,23 N.M. 251. At common law a crime was not committed if the mind of the person doing the act complained of was innocent, since the policy of the law is not to make innocent acts criminal (U.S.v.Schultze(D.C. Ky.)28 F. Supp. 234;U.S.v.Brunett(D.C. Mo.)53 F. (2d) 219).

To constitute a crime the act must, except as otherwise provided by statute, be accompanied by a criminal intent on the part of the accused (Herrmanv.Lyle(D.C. Wash.)41 F. (2d) 759;Nosowitzv.U.S.(C.C.A.N.Y. 282 Fed. 575;Peoplev.Hoenschle,132 Cal. App. 387;Peoplev.Campbell,237 Mich. 424;Peoplev.Bordon,204 N.Y.S. 184), or by such negligence and reckless conduct and indifference to the consequences of conduct as is regarded by law as equivalent to a criminal intent (22 C.J.S., p. 85, note 43).

Whether or not criminal intent or knowledge is an element of a statutory crime is a matter of statutory construction (Ex parteAhart,172 Cal. 762;Matter of G---- — R----, supra).

As a general rule, the statute is to be considered in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms required (Matterof G---- — R----, supra). Especially is this true in the case of crimes involving moral turpitude (Seaboard Oil Co.v.Cunningham(C.C.A. Fla.)51 F. (2d) 321, cert. den.284 U.S. 657).

Concededly, a "criminal mind" is not an element of the offense in the case of statutory crimes not involving moral turpitude, passed in aid of the police power of the State, where the word "knowingly" or other apt words are not employed to indicate that knowledge or intent is an essential element of the crime charged (Landenv.U.S.(C.C.A. Ohio) 299 Fed. 75;Mackeyv.U.S.(C.C.A. Tenn. 290 Fed. 18;Peoplev.Armentrout,1 F. (2d) 92, 118 Cal. App. (Sup. 761)).

But the absence of such words is not conclusive as to the legislature's intention (Statev.Gaetano,96 Conn. 366). The reason for this is that such crimes are considered inherently base. For example, in Connecticut, a disfiguring assault requires an intent, an assault withPage 196acid or other burning substance requires an intent, but an indecent assault does not.

The term "aggravated assault" or, for that matter, any other assault, apparently has no technical and definite common-law meaning (In re Burns,113 Fed. 987;Peoplev.Ochotski,115 Mich. 601). The term is one which is employed to describe an assault which has, in addition to mere intent (when specified by the statute or judicial interpretation) another object which is also criminal, or to include all those species of assaults which, for various reasons, have come to be regarded as more heinous than common assault, or have been made the subject of special legislative provision, as, for example, those determining the character of the assault by the nature of the weapon employed (In re Burns, supra).

An aggravated assault may be committed in many ways unaccompanied by the use of a deadly weapon. Generally, assault and battery of a high and aggravated nature is an unlawful act of injury to the person of another, accompanied by circumstances of aggravation. Thus, to support a conviction for an aggravated assault, there must be an act on which aggravation supervenes and with which it is in some way connected and there must ordinarily be an intent to injure by the means used, although under some statutes the gist of the offense is in the character of the weapon employed and not in the intent (Statev.James,133 S.C. 167;Lindseyv.State,53 Fla. 56). Assault with intent to murder, to kill, to rob, or with intent to inflict bodily harm, has been held to involve the vicious motive which is requisite for moral turpitude.8

InStatev.Gaetano,96 Conn. 366, which involved section 6384 of the General Statutes of Connecticut, and which reads "Every person who shall keep a house which is, or is reported to be resorted to, for the purpose of prostitution or lewdness * * *," the court stated:
The statutory definition of the crime does not contain the word "knowingly" or its equivalent. This omission, however, is not conclusive upon the question whether or not the State must prove that the accused knew that the house he kept was a house of ill fame. Stephen's History of Criminal Law, volume 2, paragraph 117, states that law in substance as follows: Whether "knowingly" is or is not to be employed in the definition of a statutory crime, where it is not expressed, must be determined from the general scope of the act, and from the nature of the evils to be avoided. SeeClarkv.Nussenholtz,76 Conn. 92. Clark on Criminal Law (3d Ed., pp. 92, 93) says: "There are many statutes in the nature of police regulations for the protection of the morals of the communityPage 197under which, either because it is impracticable to prove knowledge, or because it is regarded as reasonable under the circumstances that the doer of the act should take the risk of knowing the facts, it is generally held that the prohibited act is criminal notwithstanding the ignorance of the accused.


And inQuinebaug Bankv.Brewster,30 Conn. 559, the court said a question of intent is always a question of fact. The rule that a man is to be deemed to have intended the probable results of his own acts is at most a rule of evidence to be applied by the triers in inquiring into the intent, but is never a rule of law. And it has been held that a billiard cue can be a dangerous weapon, depending upon how and the purpose it is used (Statev.Litman,106 Conn. 346(1927)). And inStatev.Kemp,126 Conn. 80, the court said where it is not inherent in the offense to the accomplishment of which the conspiracy is directed that there should be an intent to defraud or injure, it is not necessary, however, in order to constitute the crime of conspiracy, to prove such an intent.

Thus in the case before us the offense is neither a simple assault nor an aggravated assault requiring a specific intent to inflict serious bodily harm or injury. Legally, criminal mind (mens rea) means criminal intent, which is an element of every crime, as distinguished from torts, where, as a general proposition, intent plays no part (Statev.Fulco,194 So. 14,194 La. 545(1940)).

But the offense here is not merelymala prohibita,it is inherently base, and this is so because an assault aggravated by the use of a dangerous or deadly weapon is contrary to accepted standards of morality in a civilized society. In fact, it is quite obvious that an assault by use of a dangerous or deadly weapon always constituted conduct contrary to acceptable human behavior. In other words, such conduct may be looked upon as always having been inherently base, and a statute denouncing and punishing such conduct does not mean that element was added by law — its presence is inherent.

For example, in distinguishing between the offense of felonious assault with intent to maim and disfigure, and the offense of aggravated assault with a deadly and dangerous weapon, involving two different Connecticut statutes, the Supreme Court of that State said, in effect, that the nature of the crimes was only one of degree, even though specific intent was an element only of the offense of assault to maim (Statev.Costa,95 Conn. 140).

Thus, in the more serious assaults, as here, we not only find the general intent, as a matter of law, but depraved motive. Therein lies moral obliquity. There would appear to be little or no difference, then, from the standpoint of moral turpitude, between an assault with intent to do great bodily harm (Matterof P----,A-6386124, approved by the Attorney General Sept. 11, 1947), and assault with a deadly and/or dangerous weapon (Matterof G---- R----,A-4569802, MayPage 19829, 1947), for as we said in theP----case, "it is the purpose which accompanies the perpetration of the crime, and the manner and nature by which it is committed which determines moral turpitude."

What makes the offense in the present case an aggravated one is the requirement of a deadly or dangerous weapon. The weapon used in the present case was not specified in either complaint. Apparently, the practice in Connecticut9is not uniform, since in theZ----case the weapon used was specified in the indictment, namely, a revolver. However, as stated, the weapon specified in the statute must be a deadly or dangerous one. This distinguishes the case from the holding inMatter of B----,56018/361 (May 27, 1941), where the statute (sec. 10098, Mason's Minnesota Statutes, 1927) required only that a weapon be used and, therefore, conceivably the weapon need not be a dangerous or deadly weapon.

Lastly, assault with a deadly weapon in general has been held to be a crime involving moral turpitude. In 30 Op. Atty. Gen. 95 (1935) it is stated:
The above-quoted portion of the decree of the Italian court shows that the alien has been convicted of the crime of willfully assaulting and seriously injuring another by shooting him with a pistol. Judging this crime by the standards prevailing in the United States as those standards have been announced in the decisions of our courts, it is one involving moral turpitude. According to those standards any crime which involves an act of intrinsically and morally wrong and malum in se, or an act done contrary to justice, honesty, principle, or good morals, is a crime involving moral turpitude (37 Op. A.G. 293;Tillinghastv.Edmead,31 F. (2d) 81;Coykendallv.Skrmetta,22 F. (2d) 120; and applying this rule, our courts have held that a willful assault with a dangerous weapon involves moral turpitude (U.S.v.Day,15 F. (2d) 391;Weedinv.Tayokichi Yamada,4 F. (2d) 455;U.S.v.Watchorn,164 Fed. 152;Ciambelliv.Johnson,12 F. (2d) 465;U.S.v.Corsi, supra;U.S.v.Curran,12 F. (2d) 394;U.S.v.Doak,5 F. Supp. 561;U.S.v.Smith,8 F. (2d) 633.


We conclude, therefore, that the offenses for which appellant was convicted pursuant to the Connecticut statute under consideration involve moral turpitude, and our previous holding in theZ----case, so far as it is inconsistent herewith, is overruled.

The appellant was ordered deported to Poland, April 18, 1941, on the charge set forth above. On November 9, 1945, the order of deportation was withdrawn and proceedings ordered held in abeyance for a period of 6 months to enable appellant to apply for a pardon for one or both offenses. Since appellant has not undertaken steps to secure a pardon, we shall affirm the action of the Acting Commissioner by his order of October 24, 1927, redirecting appellant's deportation to Poland.Order:It is ordered that the alien be deported to Poland, at Government expense, on the charge contained in the warrant of arrest.Page 199
  1. In neither complaint is the character of the weapon indicated. ↩
  2. There is no question here as to whether appellant has been sentenced more than once within the meaning of section 19, Immigration Act of 1917, as amended (Tanv.Phelan,No. 370 Oct. Term 1947, Supreme Court of the United States.) (333 U.S. 6). ↩
  3. Here the indictment averred the use of a revolver laden with gunpowder and lead. ↩
  4. Section245of the California Penal Code reads: Assault with a deadly weapon: Punishment — Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison not exceeding 10 years, or in a county jail not exceeding 1 year, or by fine and imprisonment. ↩
  5. Matter of T---- G----,56166/377, May 30, 1944;Matterof P----,55858/216, June 10, 1944;Matter of M----,AR-010044, December 12, 1944. The Service expresses the opinion that the holding in the Z---- case was overruled by the G---- R---- case, and the instant case is presented for a specific ruling on that point. ↩
  6. U.S. ex rel. Zaffaranov.Corsi,63 F. (2d) 757, C.C.A. 2d, 1933;U.S. ex rel. Griffov.McCandless,28 F. (2d) 287(E.D. Pa. 1928);U.S. ex rel. Morlacciv.Smith,8 F. (2d) 663(W.D.N.Y. 1925);Ciambelli ex rel. Maranciv.Johnson,12 F. (2d) 465,466(D. Mass. 1926). ↩
  7. U.S. ex rel. Mangioviv.Karnuth,30 F. (2d);Matterof D----,56075/273 (Feb. 13, 1942);Troutnerv.State,154 Pac. 1084;U.S.v.Carrollo,30 F. Supp. 36; 33 Columbia Law Review 55. ↩
  8. Clarkv.Orabona,59 F. (2d) 204 (1930);Shladzienv.Warden,45 F. (2d) 204(1930);U.S. ex rel. Rizzov.Kenney,50 F. (2d) 412(1931);Weedinv.Yamada,4 F. (2d) 455, CCA 9th, 1925;Matter of P----A-6386124, approved by the Attorney General September 11, 1947, which involved an assault with intent to do great bodily harm less than the crime of murder, in violation of section 28.279, title 28, chapter 286a, Michigan Penal Code. ↩
  9. The same practice apparently obtains in California. SeeMatter of G---- — R----, supra. ↩