A-5206530
Decided by Board September 11, 1952.
Crimes involving moral turpitude, by States: California, manslaughter — Crimes involving moral turpitude, manslaughter, section 192, California Penal Code.
(1) In the absence of evidence in the record of conviction, indicating that the killing was of an involuntary nature, manslaughter in violation of section 192 of the California Penal Code is deemed to be voluntary and consequently is an offense involving moral turpitude.
BEFORE THE BOARD
Discussion: The appellant is a 49-year-old married male, a native and citizen of Mexico, who last entered the United States on May 13, 1947, upon the presentation of a resident alien's border crossing identification card. The hearing officer recommends cancellation of the proceedings.
The question presented is whether the alien's conviction for manslaughter was one for voluntary or involuntary manslaughter.
On December 22, 1937, an information was filed against the appellant in the superior court, County of Los Angeles, State of California charging him with murder in that on November 28, 1937, he had willfully, unlawfully, and feloniously and with malice aforethought murdered a human being; and at the time of commission of the offense he had been armed with a deadly weapon, to wit: An automatic revolver.
On April 7, 1938, an order of the court was entered stating that the appellant had been found guilty of the crime of manslaughter, a felony, a lesser offense than charged in the information but necessarily included therein. The appellant was ordered punished by imprisonment in a State prison in California for the term prescribed by law.
The record reveals that the California Board of Prison Terms and Paroles set the period of the alien's confinement at a term of 8 years, 7 months, and 12 days. The actual time served is not clearly shown in the record. He was released from parole on December 31, 1943.
Voluntary manslaughter involves moral turpitude; involuntary manslaughter does not, Matter of B----, A-1101248 (1951, B.I.A.) 4 IN Dec. 493. It is therefore necessary to determine whether the alien's conviction was one for voluntary manslaughter or involuntary manslaughter. In determining whether or not the conviction was one for voluntary manslaughter or for involuntary manslaughter, we are precluded from going behind the record of conviction. Mylius v. Uhl, 203 F. 152 (S.D.N.Y., 1913); Matter of S----, 2 IN Dec. 559 (A.G., 1947). The record of conviction consists of the information, plea, verdict, and sentence, Matter of S----, A-5702971, 2 IN Dec. 353, 357 (A.G., 1945).
Manslaughter at the time the appellant was convicted was defined as follows by section 192 of the California Penal Code:
Manslaughter. — Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:
1. Voluntary: Upon a sudden quarrel or heat of passion.
2. Involuntary: In the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.
The distinction between murder and manslaughter in its two forms was stated in Peo. v. Kelley, 140 P. 302, 305 (1914):
The crime of involuntary manslaughter is entirely distinct from that of murder and voluntary manslaughter. The three crimes possess but one element in common, and that is the fact of the killing. In murder, there is, essentially, the element of malice or premeditation and the preconceived intention to kill. In voluntary manslaughter, while the element of malice or premeditation in the taking of life is wanting, the intention to do so is present, as the term "voluntary" necessarily implies. Involuntary manslaughter, as the phrase necessarily imports, and as our Code defines that crime, is the taking of life in certain unlawful ways without any intention of doing so.
A valid conviction for manslaughter may be had under an indictment for murder, Peo. v. Kelley ( supra). In such an event, the conviction for manslaughter is in legal effect an acquittal of the murder charge ( Estate of Kirby, 121 P. 370, 371 (1912). A conviction in the general form of "manslaughter" may be one for either voluntary or involuntary manslaughter. Cf. Peo. v. Bones, 170 P. 166, 167, 168 (1917); Peo. v. McNulty, 26 P. 597 (1891).
The case at bar presents a situation similar to those considered in Matter of S---- (supra) (A.G., 1947); Matter of D---- (1947, B.I.A.) 3 IN Dec. 51; Matter of B----, A-1101248 (1951, B.I.A.) 4 IN Dec. 493. In Matter of S----, the indictment charged an alien with "unlawfully, purposely and maliciously killing certain named persons." The alien pleaded guilty to the lesser offense of manslaughter and was sentenced to serve an indeterminate term of imprisonment. The Ohio courts held that the statute embraces both voluntary and involuntary manslaughter. The Attorney General stated:
The indictment for murder in the second degree clearly charged the alien with two voluntary killings. By his pleas of guilty to manslaughter, the alien admitted these killings. In the absence of other evidence in the records of conviction, under the Ohio statute it is reasonable to conclude that the homicides committed by the alien were voluntary. Consequently, the crimes involved moral turpitude.
The information in the instant case charged the alien with willfully, unlawfully, and feloniously and with malice aforethought murdering a human being. He is clearly charged with a voluntary killing. While the conviction on the charge of manslaughter is in effect an acquittal of the charge of murder; such acquittal eliminates only the elements of malice and premeditation. There remains the intentional taking of human life charged by the information. In the absence of evidence in the record of conviction indicating the taking was an involuntary one (and there is no such indication in the record) it is reasonable to conclude the homicide committed was a voluntary one. Consequently, the crime involves moral turpitude. The charge in the warrant of arrest is sustained.
When the record shows a grant of probation, it is an indication that the manslaughter was involuntary, for probation is precluded in cases of conviction of voluntary manslaughter. Peo. v. Pilgrim, 166 P. (2d) 636, 640 (1946). (The instant record makes no reference to a grant of probation.)
The respondent testified he is married to a citizen of the United States and that he is living with his wife. There are no children of the union. He testified he has resided continuously in the United States since 1922 with the exception of short visits to Mexico. In 1947, he was arrested for disturbing the peace and sentenced to 5 days in jail. In the same year, he served a sentence of 6 months on an arson charge. His attorney, who was a State parole officer from 1940 to 1944 testified that during the time the respondent was under his custody and supervision, he (the respondent) exhibited exemplary character, paid strict attention to his work, and complied in all respects with the terms and conditions under which he was granted parole. The respondent's deportation is mandatory unless he is granted favorable consideration under the 7th proviso to section 3 of the act of February 5, 1917, as amended. Especially in view of the recent arrest record since his release from confinement, it does not appear that discretionary relief should be granted. Deportation will be ordered.
Order: It is ordered that the alien be deported from the United States, pursuant to law, on the charge stated in the warrant of arrest.