A-5093042.
Decided by Board June 7, 1946.
Crime involving moral turpitude — Contributing to delinquency of a child (1931) — Violation of sections 37.090 and 37.089 of the Illinois Criminal Code.
The last clause of section 37.089 of the Illinois Criminal Code defines a delinquent child as one who is "guilty of indecent or lascivious conduct"; so where the information shows that conviction occurred thereunder and charges that the defendant had contributed to the delinquency of a child by encouraging a child to be guilty of indecent or lascivious conduct, and the acts are of the nature commonly referred to as statutory rape, the offense defined by the statute involves moral turpitude
CHARGE:
Warrant: Act of 1917 — Sentenced for crime within 5 years after entry. Contributing to the delinquency of a child.
BEFORE THE BOARD
Statement of the Case: On May 27, 1944, we found respondent deportable on the charge stated in the warrant of arrest, but we deferred execution of the warrant of deportation for 6 months to enable respondent to prosecute his application for a pardon. On March 20, 1946, we again examined the case and found that the crime for which the alien was convicted did not involve moral turpitude. We therefore directed that the order and warrant of deportation be withdrawn, and that the warrant of arrest be canceled. The Central Office believes that the offense does involve moral turpitude and has asked us to reconsider our decision of March 20, 1946.
Discussion: Respondent is a native and citizen of Yugoslavia, 45 years old, who last entered the United States from Canada in December 1928. In December 1931 he was convicted for violation of Illinois Criminal Code, sections 37.090 and 37.089, committed in October 1931, and sentenced to 1 year in the Chicago House of Correction. The information on which he was convicted charges that he encouraged A---- V----, a girl 15 years old, to become a delinquent child and that he committed acts which directly contributed to conditions which tended to render A---- V---- to become a delinquent child, by taking the girl into a basement and having intercourse with her. The statutory provisions are set forth in our opinion of March 20. It will be noted that section 37.089 defines several types of conduct as constituting delinquency. If a person is guilty of contributing to the delinquency of a child, for example, by encouraging a 16-year-old boy to frequent a pool room or a place where a gambling device is operated, or encouraging him to wander about the streets in the nighttime, or to wander about railroad yards, we think that an offense of this nature would not involve moral turpitude. The last clause, however, in section 37.089 defines a delinquent child as one who is "guilty of indecent of lascivious conduct." Although the information in this case does not specify the clause under which the conviction occurred, it is evident that the last clause is the one which forms the basis for the conviction.
The courts have recognized that the term "moral turpitude" in section 19 of the Immigration Act of 1917 is vague. In United States ex rel. Ciarello v. Reimer, 32 F. Supp. 797 (S.D.N.Y., 1940), the court said:
That term is vague and indefinite, but imports an "act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general contrary to the accepted and customary rule of right and duty between man and man."
In United States v. Carrollo, 30 F. Supp. 3, 7 (W.D. Mo., 1939) the court said:
Whether a particular crime involves moral turpitude depends on its description as set out in the statute defining it and upon the material essentials of the indictment charging it.
Although this statement is dictum, we think it is applicable here. The courts have also held that a crime involves moral turpitude only if by its definition it is necessarily or inherently immoral. (See United States ex. rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2, 1931); United States ex rel. Mylius v. Uhl, 210 Fed. 860, 863 (C.C.A. 2, 1914).)
With this background we may consider the Illinois statute. Convictions have taken place under that statute where the information has charged the taking of indecent liberties with a 12-year-old girl ( People v. Klyczek, 307 Ill. 150, 138 N.E. 275 (1923); ravishing and carnally knowing a 16-year-old girl, People v. Calkins, 291 Ill. 317, 126 N.E. 200 (1920); indecent exposure before an 11-year-old girl, People v. Brosnan, 361 Ill. 545, 198 N.E. 708 (1935); indecent exposure before a boy under the age of 18, 305 Ill. App. 500, 27 N.E. (2d) 662 (1940); intercourse with a girl under the age of 18, People v. Travis, 202 Ill. App. 226 (1916); indecent exposure before a 3-year-old girl, People v. Gruhl, 388 Ill. 52, 57 N.E. (2d) 371 (1944)).
In all these cases, the conviction evidently occurred under the last clause in section 37.089. The information should, of course, be used to determine whether the conviction occurred under this clause or under some other clause. In the present case the information shows that the conviction did occur under the last clause, and it also shows that respondent was guilty of what is generally defined as statutory rape. Where the information charges that a defendant has contributed to the delinquency of a child by encouraging a child to be guilty of indecent or lascivious conduct, and the acts are of the nature commonly referred to as statutory rape, we think that the crime defined by the statute involves moral turpitude.
Cf. Bendel v. Nagle, 17 F. 2d 719 (C.C.A. 9, 1927), in which the court said that carnal knowledge of a 15-year-old girl in violation of a Maryland statute involved moral turpitude; Ng. Sui Wing v. United States, 46 F. 2d 755 (C.C.A. 7, 1931), in which the court held that rape in Illinois involved moral turpitude. In the latter case the indictment charged (1) common law rape, (2) statutory rape, and (3) contributing to the delinquency of a minor female child. The alien there was evidently convicted of rape because this was the crime named in the warrant of arrest in deportation proceedings.
The file contains a memorandum by the Assistant States Attorney in Chicago which states: "It is my understanding that a finding of guilty of contributing is a general finding and is not necessarily predicated on a finding that the defendant committed the specific acts as alleged in the complaint." We are unaware of any legal authority to support this statement. On the contrary, the Illinois courts have held that the proof must conform to the indictment or information in order to sustain a conviction ( People v. Mader, 313 Ill. 277, 145 N.E. 137 (1924); People v. Clavey, 355 Ill. 358, 365, 189 N.E. 364 (1934); Cf. People v. Day, 321 Ill. 552, 554, 152 N.E. 495 (1926)).
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 Yugoslavia;
(2) That the respondent last entered the United States at Detroit, Mich., December 11, 1928;
(3) That the respondent was sentenced to imprisonment for a term of 1 year in the House of Correction, Chicago, Ill., after his conviction for contributing to the delinquency of a child committed October 11, 1931.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he has been sentenced subsequent to May 1, 1917, 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: contributing to the delinquency of a child;
(2) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Yugoslavia at Government expense.Other Factors: Respondent testified that he did not know the girl named in the information was only 15 years old and that he wished to marry her, but that her mother objected. He is steadily employed, and at the time of the hearing he had assets valued at $550. He has never been on relief. He has a brother who is a legal resident of the United States. The file contains several character affidavits and letters from employers and acquaintances stating that respondent is industrious and honest. He was married in February 1945, and his wife has three minor children by a former marriage. Respondent is the sole support of his wife and children, all of whom are citizens of the United States. According to the motion to reopen, the Illinois pardon authorities have taken unfavorable action on his application for a pardon. We shall order deportation, but in view of the circumstances we shall defer execution of the warrant of deportation to permit respondent to renew his application for a pardon.
Order: It is ordered that the respondent be deported to Yugoslavia at Government expense on the charge stated in the warrant of arrest.
It is further ordered, That execution of the warrant of deportation be deferred for 30 days from the date of notification of this decision to permit respondent to file application for a pardon, and if such application is filed, that execution of the warrant of deportation be deferred for an additional period of 6 months.
It is further ordered, That the order of this Board dated March 20, 1946, dismissing the warrant of arrest and closing the proceedings be rescinded.