Opinion · United States Board of Immigration Appeals

IN THE MATTER OF P----, 2 IN Dec. 117 (BIA 1944)

2 IN Dec. 117

Type
Opinion
Court
United States Board of Immigration Appeals
Jurisdiction
Federal
Date
1944-06-23
Topic
general

IN THE MATTER OF P----, 2 IN Dec. 117 (BIA 1944) IN THE MATTER OF P----. In DEPORTATION Proceedings. A-3748813 (56124/801)Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board June 23, 1944. Crime involving moral turpitude — Contributing to delinquency of minors (1942) — Section 1987-17 of Remington's Revised Statutes of Washington.

Citator

UpLaw has not yet analyzed IN THE MATTER OF P----, 2 IN Dec. 117 (BIA 1944). The absence of a flag is not a finding that it is good law.

IN THE MATTER OF P----,2 IN Dec. 117(BIA 1944)
IN THE MATTER OF P----. In DEPORTATION Proceedings.
A-3748813 (56124/801)
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by the Board June 23, 1944.
Crime involving moral turpitude — Contributing to delinquency ofminors (1942) — Section 1987-17 of Remington's Revised Statutesof Washington.

Where the statute violated in this country does not require any specific intent and the record of conviction does not disclose whether the offending act was done with evil intent, it cannot be said that the offense of contributing to the delinquency of minors by making an indecent exposure in violation of Section 1987-17 of Remington's Revised Statutes is one which involves moral turpitude.

CHARGE:

Warrant: Act of 1917 — Sentenced more than once for crimes; Attempt to commit rape; Contributing to delinquency of minors.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion:After a hearing the Presiding Inspector found the respondent deportable on the warrant charge and recommended his deportation. The Central Office of the Immigration and Naturalization Service concurs in this recommendation.

The respondent is a 64-year-old native and citizen of Ireland, who first entered the United States in March 1908 and has resided here continuously since that time, except for a 2-month visit to Canada in 1911. On November 23, 1936, he was sentenced to imprisonment in the Montana State Prison following a conviction of the crime of attempt to rape, said crime having been committed on or about September 19, 1936. The respondent was released from prison after serving 5 years and 2 months of this sentence. Clearly this crime involves moral turpitude and the respondent has been sentenced to imprisonment for a year or more within the meaning of the act of February 5, 1917.

On September 21, 1942, the respondent was charged with committing the crime of contributing to the delinquency of minors in Spokane County, Wash., said crime having been committed on or about July 1, 1942. He was convicted in Superior Court, on his plea of guilty, and on September 23, 1942, he was sentenced to imprisonment in the Spokane County jail for a term of 1 year, which sentence he has apparently served.

To hold that the respondent is deportable on the warrant charge, we must find that the crime of contributing to the delinquency ofPage 118minors in the State of Washington involves moral turpitude. The statute under which the respondent was convicted is section 1987-17 of Remington's Revised Statutes of Washington, which reads as follows:
In all cases where any child shall be dependent or delinquent under the terms of this act, the parent or parents, legal guardian or person having custody of such child, orany other person who shall by any actor omission, encourage, cause or contribute to thedependency or delinquency of such child shall beguilty of a misdemeanor,and upon conviction thereof, shall be punished by fine not exceeding one thousand dollars, or imprisonment in the county jail for not more than one year, or by both such fine and imprisonment, and the juvenile court shall have jurisdiction of all such misdemeanors. [Italics supplied.]


Preliminary to the discussion of whether the crime committed by the respondent involves moral turpitude, we observe that the statute is part of the Juvenile Court Law of Washington which, in common with most State juvenile laws, contains a provision that a court order adjudging a child dependent or delinquent shall not be deemed a conviction of a crime.1The case before us, however, does not concern a child who has been adjudged dependent or delinquent. It relates to an adult charged with contributing to the delinquency and dependency of such a child. Although section 1987-17 appears to vest jurisdiction of such crimes in the juvenile court, adults may be properly tried and convicted in the criminal department of the superior court.2The respondent was so tried here and his conviction is one satisfying the requirements of the act of February 5, 1917.

Moral turpitude is at best a vague term. It has been defined as an act of baseness, vileness, or depravity in private or social duties owing to fellow man, or society in general, contrary to accepted and customary rules.3In determining whether a crime involves moral turpitude, we are limited in the first instance to an examination of the statute wherein the crime is defined. If the crime as defined does not necessarily of its essence comprehend moral turpitude, then the alien cannot be said to have committed a crime involving moral turpitude.4Where, however, the statute is divisible or separable and so drawn as to include within its definition crimes which do and some which do not involve moral turpitude, the record of conviction, i.e., the information (complaint or indictment), plea, verdict and sentence,Page 119may be examined to ascertain therefrom whether the requisite moral obloquy is present.5

Section 1987-17 of Remington's Revised Statute of Washington, the statute involved herein, is extremely broad. The definitions of "dependent child" and "delinquent child," which must be considered in conjunction with sections 1987-17, are also very broad. "Dependent child" is defined in 18 subsections of section 1987-1 and "delinquent child" is defined in the same section as follows:
The words "delinquent child" shall include any child under the age of eighteen years who violates any law of this State, or any ordinance of any town, city, county or city and county of this State defining crime; or who habitually uses vile, obscene, vulgar, profane, or indecent language, or is guilty of immoral conduct; or who is found in or about railroad yards or tracks; or who jumps on or off trains or cars; or who enters a car or engine, without lawful authority.


From the foregoing definitions it is clear that section 1987-1 includes within its definition acts which may and some which do not involve moral turpitude. Accordingly, as stated above, we turn to an examination of the record of conviction to resolve the issue before us. The information in this case reads as follows:
That the said defendant, William Patterson, in the County of Spokane, State of Washington, on or about the 19th day of July 1942, then and there being, did then and there willfully and unlawfully contribute to the delinquency and dependency of minor children under the age of eighteen years, to wit: Arlene Hamilton, a female child of the age of ten years, and Arthur Hamilton, a male child of the age of ten years, by then and there making an indecent exposure of his person in the presence of said minor children, thus placing them in danger of growing up to lead an idle, dissolute, and immoral life.


This information, it should be noted, charges the respondent with having contributed to both the dependency and delinquency of two ten-year-old children by placing them in danger of growing up to lead idle, dissolute, and immoral lives. The particular dependency complained of is that defined in subsection 16 of section 1987-1 which reads:
For the purpose of this act the words "dependent child" shall mean any child under the age of 18 years: * * *
(16) Who from any cause is in danger of growing up to lead an idle, dissolute, or immoral life:


However, no particular act of delinquency by the children is charged in the information, and it appears to have been drawn to bring the crime within subsection 16 of said section 1987-1.6Subsection 16Page 120of section 1987-1,supra,defines a child as dependent who is under18years of age and who fromany causeis in danger of growing up to lead an idle, dissolute, or immoral life. In considering this definition in relation to section 1987-1, we should bear in mind that the State of Washington has set forth the legislative policy with respect to the interpretation to be given this act in section 1987-14 by saying —
(This act) shall be liberally construed to the end that its purpose may be carried out, to wit: That the care, custody and discipline of a dependent or delinquent child as defined in this Act shall approximate as near as may be that which should be given by its parents * * *.7


The broadness and the generality of the terms "from any cause" and "idle, dissolute, or immoral life," and the age limit of 18, all appearing in section 1987-1 (16), and the use of the similarly broad and general term "by any act or omission" appearing in section 1987-17, when considered in the light of the legislative policy of liberal construction, lead us to conclude that the crime, as thus defined, would not necessarily or inherently make a violator thereof guilty in every instance of base, vile, or depraved conduct.8A parent who permitted his 17-year-old son or daughter to associate with companions who were disorderly at school could very well be convicted under this statute as contributing to his or her dependency by placing him or her in danger of growing up to lead an idle, dissolute, and immoral life.9We hardly think that such a person's conduct can be said to involve moral turpitude within the meaning of the act of February 5, 1917, so as to justify deportation. A mother who told her 15-year-old daughter to sell liquor could undoubtedly be similarly convicted under this statute as encouraging her daughter to grow up to lead an idle, dissolute, and immoral life.10

So also could a person who sold intoxicating liquor to a child just under 18 years of age.11Violation of liquor laws do not involvePage 121moral turpitude,12and we do not believe that the aforesaid convictions would be deportable offenses.

One of the criteria adopted to ascertain whether a particular crime involves moral turpitude is that it be accompanied by a vicious motive or corrupt mind.13"It is in the intentthat moral turpitude inheres."14[Italics supplied.] Section 1987-17 as limited by section 1987-1 (16) does not require any specific intent. The mere doing of any act which encourages, causes, or contributes to the dependency of a child by placing him in danger of growing up to lead an idle, dissolute, or immoral life constitutes a violation of the statute.15In the absence of this essential element we cannot say that the crime, as defined, involves moral turpitude. The information discloses that the alien made an indecent exposure of his person in the presence of two ten-year-old children, one male, the other female, thus placing them in danger of growing up to lead an idle, dissolute, and immoral life.

There is nothing in this recital to indicate the circumstances under which the exposure was made; whether to arouse the sexual desires of the parties concerned or with a lewd or lascivious intent,16or whether it was because of a negligentdisregard of the children's presence occasioned by physicalnecessity.A conviction would undoubtedly have resulted in any event; yet we do not feel that the act in the latter instance shows a base, vile or depraved mind.Page 122

The allegation in the information that the respondent did willfully and unlawfully contribute to the delinquency and dependency of the two children does not supply the essential vicious motive or corrupt mind. It is used merely to show that the act was done consciously.

While such action on the part of the respondent may have displayed a lack of propriety, it does not necessarily follow that a person guilty of such conduct is to be deemed depraved, base, or vile. The fact that most States have statutes, in the exercise of their police powers, punishing indecent exposure does not aid us in the determination of this question. Most States also have, in the exercise of their police power, statutes punishing the disturbance of the peace, sauntering and loitering, and like trivial breaches of the peace. It could be hardly contended that a violation of such statutes involves moral turpitude.

An example of the extent to which such statutes have been used is illustrated by a conviction under section 335 of the Michigan Penal Code (Act 328, Public Acts, 1931) which makes it a misdemeanor for "any man or woman * * * (to) designedly make any open, or indecent, or obscene exposure of his or her person." Such an exposure has been defined in Michigan as "the exhibition of those private parts of the person which instinct, modesty, human decency, or natural self-respect, requires shall be constantly kept covered in the presence of others."17Yet, an operator of a nudist camp was convicted under this statute where the facts showed that the people in the camp, which was located on private property, were sincere in their belief and their practice of nudism and acted in good faith.18Among those present were children and married and unmarried adults whose sense of propriety, decency, and morality was not shocked by the exhibition. Nevertheless, the court held that the statute had been violated.

We have no doubt that under similar circumstances there would be a violation of the Washington statute now before us. For aught we know, since we may not look outside the record of conviction, this alien may have been convicted under these circumstances. It can hardly be contended that such conduct would justify a finding of moral turpitude and the consequent penalty of deportation.

For the foregoing reasons we must conclude that the crime of which this alien was convicted in the State of Washington does not involve 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 Ireland;
Page 123
(2) That the respondent last entered the United States at Sweetgrass, Mont., in 1911;
(3) That the respondent was sentenced on November 23, 1936, to imprisonment in the Montana State Prison for a term of not less than 12 years as a result of his conviction of the crime of attempt to commit rape, said crime having been committed on or about September 19, 1936;
(4) That on September 23, 1942, the respondent was sentenced to imprisonment in the Spokane County jail for a term of 1 year as a result of his conviction of the crime of contributing to the delinquency of minors, said crime having been committed on or about July 19, 1942.
Conclusions of Law:Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the crime of contributing to the delinquency of minors in the State of Washington does not involve moral turpitude;
(2) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that on or after May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude, committed after entry, to wit: Attempt to rape and contributing to the delinquency of minors.
Order:It is ordered that the warrant of arrest be canceled and the proceedings closed.Page 124
  1. Section 1987-10, Remington's Revised Statutes of Washington. ↩
  2. Statev.Strom,144 Wash. 344(1927);Statev.Williams,73 Wash. 678(1913). ↩
  3. Ng Sui Wingv.United States,46 F. (2d) 755(C.C.A. Ill., 1931). ↩
  4. Myliusv.Uhl,210 Fed. 860 (C.C.A. 2d, 1914);U.S. exrel. Robinsonv.Day,51 F. (2d) 1022(C.C.A. 2d, 1931);U.S.ex rel. Zaffaranov.Corsi,63 F. (2d) 757(C.C.A. 2d, 1933). ↩
  5. U.S. ex rel Valentiv.Karnuth,1 F. Sup. 370(D.C.N.D.N.Y., 1932);U.S. ex rel. Zaffaranov.Corsi, supra,footnote 4;Guarinov.Uhl,107 F. (2d) 399(C.C.A. 2d, 1939). ↩
  6. It has been held that the terms "dependent child" and "delinquent child," as used in the statute, are largely synonymous, the court pointing out that the statute purports to define the former term but not the latter.Statev.Clevinger,161 Washington 306 (1931). ↩
  7. Cf. Statev.Adams,95 Wash. 788;State ex rel.Radduev.Superior Court,106 Wash. 619(1919). ↩
  8. That the law must be uniformly administered. It would be manifestly unjust so to construe the statute as to exclude one person and admit another where both were convicted of criminal libel, because in the opinion of the immigration officials testimony in the former case showed a more aggravated offense than in the latter (Myliusv.United States, supra,p. 863). ↩
  9. Cf. State ex rel. Radduev.Superior Court,106 Wash. 619(1919). ↩
  10. Cf. Peoplev.Ferello,92 Cal. App. 683(1923). ↩
  11. Cf. Peoplev.Baker,38 Cal. App. 28(1918). In this case the child was 18 years old and though under the State law such a sale was not a violation of the liquor laws, the seller was convicted under section702of the California Welfare and Institutions Code, part of the Juvenile Court Act of California. This statute and the definitions thereunder are substantially similar to the Washington statute, except that the age limit is 21 years in California. The court said at p. 31: "The Juvenile Court Act is designed to protect all persons under the age of 21 years from suffering the consequences of any act which causes or tends to cause or encourages such persons to become addicted to the use of intoxicating liquor or to lead idle, dissolute, or immoral lives. * * * If under certain circumstances it may reasonably be held that selling intoxicating liquor to any person under the age of 21 years might or would have such tendency, the act of selling such liquor comes clearly within the statute and is punishable as a misdeameanor." ↩
  12. U.S. ex rel. Foriov.Day,34 F. (2d) 920(C.C.A. 2d, 1929);Skrmettav.Coykendall22 F. (2d) 120(C.C.A. 5th, 1927). ↩
  13. Opinions of the Solicitor of Labor, December 5, 1922 (No. 4/561); and March 1, 1923 (No. 4/593);U.S. ex rel. Mongioviv.Karnuth,30 F. (2d) 825(D.C.W.D.N.Y., 1929);U.S. ex rel.Meyerv.Day,54 F. (2d) 336(C.C.A. 2d, 1931). ↩
  14. U.S. ex rel. Meyerv.Day, supra. ↩
  15. The intent moving the defendant to sell him (the child) the beer is immaterial. It is the effect of selling and the tendency in selling to cause the minor to become delinquent that the law contemplates, and not the motive or intent of the seller (Peoplev.Baker, supra,at p. 33). ↩
  16. We have held that carnal abuse of a minor child and the crime of taking indecent liberties with a minor involve moral turpitude (Matter of D---- F----,56150/839 (now A-2174218) (Mar. 25, 1944);Matter of S----,56139/541 (Apr. 10, 1944)). Neither of these situations is established on the record before us. ↩
  17. Peoplev.Kratz,230 Mich. 334,337(1915). ↩
  18. Peoplev.Ring,267 Mich. 657(1934). ↩