A-1917524
Decided by Board March 9, 1956
Single scheme of criminal misconduct — Lewdness over a period of months and indecent assault committed on a given date within the same period are separate acts of criminal misconduct.
Convictions on the same date and in the same court of the crime of lewdness over a period of three months in violation of section 53, chapter 272, Annotated Laws of Massachusetts, and the crime of indecent assault and battery on a child under the age of 14 on a given date within the same three-month period in violation of chapter 299 of the Acts of 1953, General Laws of Massachusetts, are convictions of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Convicted of two crimes involving moral turpitude after entry: Indecent assault and battery; lewdness.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from an order of the special inquiry officer entered on October 25, 1955, ordering respondent deported on the charge contained in the warrant of arrest.
The record relates to a native and citizen of Italy, 57 years old, male, who has resided in the United States continuously since September 19, 1923, when he was admitted for permanent residence.
On November 24, 1953, he was convicted by the District Court of Central Berkshire, Pittsfield, Massachusetts, of the crime of lewdness in violation of section 53, chapter 272, Annotated Laws of Massachusetts. The complaint, dated November 2, 1953, charged that the defendant on October 23, 1953, during the three months next before the making of this complaint was a lewd, wanton and lascivious person in speech and behavior. On the same date and in the same court the respondent was convicted of the crime of indecent assault and battery on a child under the age of 14 in violation of chapter 299 of the Acts of 1953, General Laws of Massachusetts, committed on October 23, 1953.
It is not disputed that the crimes involve moral turpitude. Counsel, however, contends that the two crimes of which respondent was convicted on the same day and which are alleged to have been committed on the same day, arose out of a single scheme of criminal misconduct and, therefore, the charge in the warrant of arrest that the respondent has been convicted after entry of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct has not been sustained. Counsel points out that the conviction of lewdness was based upon a complaint that the respondent on October 23, 1953, during the three months next before the making of the complaint (on November 2, 1953) was a lewd, wanton and lascivious person in speech or behavior, and makes much of the fact that the special inquiry officer inserted the conjunction "and" before the words "during the next three months," etc. It is not believed that the insertion of the conjunction adds to the conviction record. While we are reluctant not to accept the opinion of the Presiding Justice of the District Court of Central Berkshire, which is entitled to great respect, we are bound by administrative and judicial pronouncements as to whether the criminal acts here involved arose out of a single scheme of criminal misconduct.
The natural and reasonable meaning of the statutory phrase "not arising out of a single scheme of criminal misconduct" is that when an alien has performed an act which, in and of itself, constitutes a complete, individual and distinct crime then he becomes deportable when he again commits such an act, provided he is convicted of both. The fact that one may follow the other closely, even immediately, in point of time is of no moment. Equally immaterial is the fact that they may be similar in character, or that each distinct and separate crime is part of an over-all plan of criminal misconduct ( Matter of D----, E-077114, 5 IN Dec. 728). Simply because an alien commits a crime and later repeats his offense the conclusion does not follow that the offense is a part of a single scheme, even though the crimes were similar, if each criminal act was a complete and distinct offense for which the alien was convicted ( Matter of J----, A-3203990, 6 IN Dec. 382).
The respondent was convicted of the crime of having been a lewd, wanton and lascivious person in speech or behavior in violation of chapter 272, section 53, Annotated Laws of Massachusetts, which provides:
* * * lewd, wanton and lascivious persons in speech or behavior * * * may be punished by imprisonment in a jail or house of correction for not more than six months, or by imprisonment at the State farm for not more than six months, or by a fine of not more than two hundred dollars or by both such fine and imprisonment. (1943, 377, appvd. June 1, 1943.)
It has been held that a complaint which charges that a defendant on a day specified and on divers days and times between that day and the day of making the complaint was a lewd, wanton and lascivious person in speech or behavior, does not set forth two offenses, but is good under this section ( Commonwealth v. Parker, 86 Mass. (4 Allen) 313). A complaint under this section sets forth the time of committing the offense with sufficient precision which alleges that the defendant on November 29, 1861, on divers other days and at times between that day and May 29, 1862, was an idle and dissolute person ( Commonwealth v. Sullivan, 87 Mass. (5 Allen) 511). Where on a complaint under this section charging defendant with being a lewd, wanton and lascivious person in speech and behavior, the proof is confined to conduct of defendant on a single occasion, the conduct proved is not the offense but only a ground of inference that the defendant is a person of the kind described. The statute punishes being a certain kind of person, not the doing of a certain over act. The complaint is not sustained unless the conduct clearly warrants an inference that the defendant is a person of the kind described. The conduct proved is not the offense but only a ground of inference ( Commonwealth v. O'Brien, 179 Mass. 533, 61 N.E. 213). The statute is aimed at suppressing the idle and disorderly; it punishes them not for doing certain specified things, but for being rogues, vagabonds, beggers, lewd, idle and disorderly persons ( Commonwealth v. Diamond, 248 Mass. 511, 143 N.E. 503).
Thus, the conviction of lewdness in the present case is not based upon the offense charged on October 23, 1953, but is predicated upon the charge that the respondent was the certain kind of person punished by the statute in that during the three months next before the making of the complaint he was a lewd, wanton and lascivious person in speech or behavior. This conviction constituted one act of criminal misconduct while his conviction for commission of an indecent assault and battery constituted another and separate act of criminal misconduct. We, accordingly, find the charge to be sustained.
Order: It is ordered that the appeal be and the same is hereby dismissed.