A-8320680
Decided by Board August 14, 1956
Crime involving moral turpitude — Indecent exposure, section 28.567 (1) Michigan Statutes, Annotated.
The offense of indecent exposure under section 28.567 (1) of the Michigan Statutes, Annotated (sec. 335a, Michigan Penal Code), does not involve moral turpitude. (Note: Matter of R----, A-4692681, 2 IN Dec. 633, is overruled.)
DEPORTABLE:
Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at entry as an alien convicted of a crime involving moral turpitude (indecent exposure — Michigan), contrary to section 212 (a) (9) ( 8 U.S.C. 1182 (a) (9)).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the special inquiry officer dated March 15, 1956, holding the alien deportable on the lodged charge (set out above) and denying voluntary departure. Respondent, a 33-year-old native and citizen of Germany, last entered the United States on August 30, 1954, at Port Huron, Michigan, as a returning legal resident alien, coming back to this country after a one day's absence in Canada. Respondent presented an alien registration receipt form and was permitted to enter. Respondent arrived for permanent residence at New York, New York, on June 2, 1952. His first arrival occurred on December 24, 1925, with respondent leaving for Germany in January 1931.
On June 29, 1954, respondent was convicted in the Recorder's Court for the City of Detroit, Michigan, of indecent exposure, contrary to section 750.335a (No. 73, Public Acts 1952). According to the information, respondent committed the act at a playground on March 15, 1954, in the presence of a 5-year-old girl. Respondent was placed on 2 years' probation and ordered to pay the $100 cost of supervision, as well as taking psychiatric treatments.
It is noted in passing that respondent was convicted on October 10, 1955, on a plea of guilty, in Macomb County Circuit Court, Mt. Clemens, Michigan, of accosting, soliciting, and enticing an 11-year-old child with intent to induce or force the child to commit an immoral act with him. Respondent was placed on 3 years' probation and charged cost of $250.
On October 19, 1955, respondent was certified by the United States Public Health Service as a person afflicted with a psychopathic personality (sexual pervert) at the time of entry, on the basis of his 2 arrests and convictions for sex crimes. However, during the hearing testimony was heard on this point and the opinion of Dr. M---- I---- G---- was also introduced into the record.
The special inquiry officer ultimately directed that the warrant charge that respondent was excludable at entry under section 241 (a) (1) [ 8 U.S.C. 1251 (a) (1)] as a person afflicted with a psychopathic personality, contrary to section 212 (a) (4) [ 8 U.S.C. 1182 (a) (4)], be dropped because of the sharply conflicting medical testimony adduced during the hearing.
Respondent's 1954 criminal conviction is controlled by section 28.567 (1) of the Michigan Statutes, Annotated, 1954 Revision [section 335a, Michigan Criminal Code], as amended by Michigan Public Acts, 1952, No. 73, effective September 18, 1952. Although the 1952 amendment removed the offense of indecent exposure from section 28.567 and placed it in a separate statutory section, the definition of the crime remains unchanged (as does the possible sentence to imprisonment or fine) with only the provision relating to the treatment of the "sexually delinquent person" being added. The pertinent provisions read as follows:
Sec. 28.567. Lewd and lascivious cohabitation, gross lewdness and lascivious behavior; one year limitation. Sec. 335. Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavor, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by fine not more than $500.00. No prosecution shall be commenced under this section after 1 year from the time of committing the offense. (C.L. '48, Sec. 750.335.)
Sec. 28.567 (1). Open or indecent exposure; commission by sexually delinquent person; penalty; triable in court of record. Sec. 335a. Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine not more than $500.00, or if such person was at the time of the said offense a sexually delinquent, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding, said offense shall be triable only in a court of record. (C.L. '48, Sec. 750.335a.)
While the Board held in 1946 that the offense in question involved moral turpitude, this view was reversed in 1947, when the Board stated in unreported Matter of M----, A-3791009 (B.I.A., June 12, 1947), that:
Matter of R----, A-4692681, 2 IN Dec. 633 (B.I.A., June 24, 1946; approved by Attorney General without opinion, August 1, 1946), in which the Board commented that Michigan court decisions require that the act of indecent exposure be perpetrated designedly; that the statute requires the act to be committed openly and designedly in a public place; that at common law, the offense was denounced; that currently this act connoted a degree of lewdness, and was contrary to good morals and recognized sound social conduct; that an act done without design or because of some justifiable cause would not come under this section but would be treated as mere disorderly conduct.
The offense does not involve moral turpitude. The statute does not require a specific intent. A person may be convicted, under the language of the statute, even though he has acted through negligent disregard of the presence of another person and the exposure was occasioned by physical necessity.
In Matter of P----, A-3748813 (56124/801), 2 IN Dec. 117, June 23, 1944, we found that a Washington statute penalizing contributing to the delinquency of minors did not involve moral turpitude. In that case respondent was charged with what amounted to indecent exposure in the presence of children. We pointed out that the statute did not require a vicious motive or corrupt mind. We referred to section 335 of the Michigan Penal Code, and we pointed out that an operator of a nudist camp was convicted under this statute although the sense of propriety, decency and morality of the nudists was not shocked by the exhibition ( People v. Ring, 267 Mich. 657 (1934)).
We think that the offense of which respondent was convicted was not an act of baseness, vileness or depravity. See Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. Ill., 1931). Moral turpitude requires an evil intent ( United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931), and the appropriate provision in the 1917 act does not apply unless the offense necessarily involves moral turpitude ( United States ex rel. Guarino v. Uhl, 107 F. (2d) 399 (C.C.A. 2, 1939)). We find that the offense of indecent exposure under section 335 of the Michigan Penal Code does not involve moral turpitude. Our decision to the contrary in Matter of R----, A-4692681, 2, I. N. Dec. 633, is hereby overruled.
Therefore, the remaining warrant charge under sections 241 (a) (1) and 212 (a) (9) is not supported and the appeal is sustained, and the deportation proceedings should be terminated.
Order: It is hereby ordered that the appeal be sustained and the deportation proceedings be terminated.