A-3561517
Decided by the Central Office April 30, 1952 Approved by the Board April 8, 1953
Crime involving moral turpitude — Vagrancy, lewd — California
Crime of vagrancy, lewd under section 647.5 of the California Penal Code is not a crime involving moral turpitude. ( Ex parte Tom Wong, 10 P.2d 797, 122 C.App. 672 (1932) and People v. Craig, 91 P. 997, 152 Cal. 47 (1907).)
CHARGES:
Warrant: Act of 1917 — Convicted of crime prior to entry, to wit: Vagrancy, lewd.
Lodged: Act of 1917 — Admits crime prior to entry, to wit: Vagrancy, lewd. Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
(April 30, 1952)
Discussion: The record relates to a native and citizen of Mexico who last entered the United States on April 29, 1946, at El Paso, Tex., in possession of an unexpired resident alien's border crossing identification card.
The record discloses that respondent was convicted on four occasions in the city of Los Angeles, Calif., of the crime of vagrancy, lewd, the convictions having taken place on July 9, 1936, February 23, 1939, January 21, 1941, and July 30, 1942. Attached to the evidence of record are transcripts of the dockets concerning each of the offenses and also the arrest reports of the arresting officers. The evidence of record does not have therein the complaint filed in each one of the cases but the transcripts of the dockets refer to complaints which were sworn to and filed with the court. No complaints or information are extant, for the reason that the Municipal Court in Los Angeles retains such documents for a period of only 5 years.
From the arrest reports of the arresting officers and the testimony given by respondent in the deportation hearings, it is evident that the convictions resulted from acts of sexual perversion committed by respondent. However, it is well established that, in considering whether an-offense involves moral turpitude, it is not permissible to consider the circumstances under which the crime was committed. The inquiry is limited to the inherent nature of the crime as defined by the statute and established by the record of conviction. The record of conviction means the charge (indictment or complaint), plea, verdict and sentence. United States ex rel. Zaffarano v. Corsi, 63 F.(2d) 757 (C.C.A. 2, 1933). According to the law of California, every public offense must be prosecuted by indictment or information except (3) offenses tried in the municipal, justice's and police courts (sec. 682 of the California Penal Code). All proceedings and actions before a justice's or police court or a municipal court, for a public offense of which such courts have jurisdiction must be commenced by a complaint under oath, setting forth the offense charged with such particulars as time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint (sec. 1426 of the California Penal Code). The arrest reports of the arresting officers cannot take the place of the complaint filed in these actions. Consequently, in considering whether or not the offenses committed by respondent involved moral turpitude, we are bound by the transcripts of docket attached to the evidence of record. These show that respondent was convicted of the offenses of vagrancy, lewd. It is therefore necessary to consider whether the violation of the statute involved moral turpitude.
Section 647.5 of the California Penal Code, being the statute under which respondent was convicted of the four offenses, provides as follows:
5. Every idle, or lewd, or dissolute person, or associate of known thieves * * * is a vagrant and is punishable by a fine of not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.
It has been held that conviction of the crime of vagrancy in Canada or in New York is not an offense involving moral turpitude, inasmuch as the courts in those jurisdictions characterize the offense as punishing the condition of vagrancy into which the person had fallen and not as an omission or commission punishable by law. See Matter V---- S----, A-6312286, 2 IN Dec. 703 (B.I.A., 1946). It is necessary therefore to consider whether the courts of the State of California have adopted a similar view. In the case of Ex parte Tom Wong, 10 P.2d 797, 122 C.App. 672 (1932), it was stated that section 647 of the California Penal Code defined a continuing offense, the court stating "counsel stresses the fact that we have no statute defining `vagrant.' Turning to the dictionary, vagrancy is the state of being a vagrant." In the case of People v. Craig, 91 P. 997, 152 Calif. 47 (1907), the court in commenting on subdivision 5 of section 647.5 of the California Penal Code stated "vagrancy differs from most other offenses in the fact that it is chronic, rather than acute; that it continues after it is complete, and thereby subjects the offender to arrest at any time before he reforms." In the case of People v. Scott, 296 P. 601, 113 Calif.App. 778 (1931), in a case involving a conviction of vagrancy, as being a dissolute person, where the defendants danced in the nude on a single occasion, the court held that a single act under the provisions of subdivision 5 of section 647.5 of the California Penal Code may be sufficient to constitute vagrancy, the court stating that "conceding that vagrancy is chronic rather than acute, as stated in People v. Craig ( supra), yet we think the existence of such a chronic condition may be ascertained from a single examination, if the characteristic reactions of that condition be found present."
It is therefore apparent that the courts of California construe the statute relating to vagrancy as having the same effect as construed by the courts of Canada and New York, namely, characterizing the offense as punishing the condition of vagrancy into which the person had fallen. Consequently, it must be concluded that the conviction for the crime of vagrancy in the State of California does not involve moral turpitude.
Furthermore, it is well established, that, in determining whether a crime involves moral turpitude, consideration must be given in the first instance to the crime as defined by the statute. The definition of the crime must be taken at its minimum and if, as defined, it does not inherently or in its essence involve moral turpitude, then the alien cannot be deemed to have been guilty of base, vile or depraved conduct. See Matter of B----, A-1101248, B.I.A., 1951, 4 IN Dec. 493. In the case of State v. Harlowe, 24 P.2d 601, 174 Wash. 227 (1933), the court in the State of Washington in discussing a similar provision as the provisions involved in the instant case approved a trial court instruction regarding the definition of lewd. The trial court's instruction was "you are instructed that the term `lewd person' is defined as being lawless, bad, vicious, unchaste." In the case of Ex Parte McCue, 96 P. 110, 7 Calif.App. 765 (1908), in holding subdivision 5 of section 647.5 of the California Penal Code to be constitutional it was stated "But this cannot be said of lewdness or dissoluteness, terms often used interchangeably, but each of which applies to the unlawful indulgence of lust, whether in public or private." In the case of People v. Scott ( supra), the California court adopted the definition of "dissolute" as set forth in Webster's Unabridged Dictionary as "loosed from restraint, unashamed, lawless, loose in morals and conduct, recklessly abandoned to sensual pleasure, profligate, wanton, lewd, debauched." In the case of People v. Babb, 229 P.2d 843 (April 9, 1951), the court, in determining whether subdivision 5 of section 647.5 of the California Penal Code insofar as it defined a vagrant as a lewd or dissolute person was necessarily included within the infamous crime against nature defined by section 286 of the Penal Code, stated that "lewd and dissolute are terms often used interchangeably. Each applies to the unlawful indulgence in lust whether in public or private ( In re McCue, 7 Calif.App. 765, 766, 96 P. 110). `Lewd' is defined to mean: `4. Lustful; libidinous, lascivious, unchaste.' `Dissolute' is defined to mean: 2. loose in morals and conduct, wanton, lewd, and debauched.' Webster's New International Dictionary, 2d Edition."
Assuming, therefore, that the crime of vagrancy, lewd in the State of California does not refer to a state of being, and considering the crime committed by respondent at its minimum, as defined in the statute, the violation of the statute may not inherently or in its essence involve moral turpitude inasmuch as conviction may be based on conduct which is neither base, vile nor depraved, criteria for determining that the offense involves moral turpitude.
In the light of the foregoing, it is concluded that, on the evidence of record, respondent was not convicted of crimes involving moral turpitude. Further he may not be found to have admitted the commission of crimes involving moral turpitude. Therefore the criminal charges cannot be sustained. Since respondent was in possession of an unexpired resident alien's border crossing identification card at the time of his last re-entry into the United States, and since it has been found that the crimes do not involve moral turpitude, he was in possession of a proper immigration document. Therefore the documentary charge also is not sustainable. In view thereof, respondent is found not to be deportable and an order will be entered for the termination of the proceedings.
Order: It is ordered that the proceedings be terminated.
It is further ordered that in accordance with section 90.3(b) of 8 C.F.R. this case be certified to the Board of Immigration Appeals as one involving a question of difficulty.
(April 8, 1953)
Discussion: This case was certified to this Board by the Assistant Commissioner on April 30, 1952 for final decision pursuant to 8 C.F.R. 90.3(b). The case is submitted on the record.
This respondent is a native and citizen of Mexico who was admitted to the United States for permanent residence on November 12, 1922, at Nogales, Ariz. He last entered the United States on April 29, 1946, at El Paso, Tex., at which time he presented an unexpired resident alien's border crossing identification card.
The Assistant Commissioner, after a thorough and exhaustive study of the evidence in this record and applicable statutes upon which the criminal charges are based, has held that the offense of vagrancy, lewd, committed by the alien in violation of section 647.5 of the California Penal Code, prior to his last entry, does not involve the element of moral turpitude. The Assistant Commissioner has also found that this alien was in possession of appropriate immigration documents at the time of last entry.
After careful consideration of the pertinent evidence in this record together with the opinion of the Assistant Commissioner, this Board is entirely in agreement with the decision of the Assistant Commissioner. It follows that the proceedings should be terminated.
Order: It is ordered that the proceedings in this case under warrant of arrest dated October 10, 1950, be and the same are hereby terminated.