A-5944811.
Decided by Board March 14, 1946.
Crime Involving Moral Turpitude — Abortion — Assault, second degree — New York.
1. The crime of abortion (New York) involves moral turpitude.
2. The crime of assault with intent to commit abortion (subdivision 5 of section 242 of the New York Penal Law) involves moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for commission of crimes involving moral turpitude, to wit: Assault, second degree; Abortion.
BEFORE THE BOARD.
Discussion: This record relates to a native of Jamaica, British West Indies, subject of Great Britain, 70 years of age, who entered the United States during July 1898 at the port of New York as a passenger on the S.S. Belle Clare. He has resided here continuously since his entry. The entry as claimed could not be verified.
The respondent was arrested in January 1942 on a charge of abortion; and, on June 5, 1942, was convicted in the Court of General Sessions of the County of New York, of the crime of abortion, committed January 11, 1939. On June 23, 1942, he was sentenced to the State Prison for a term of not less than 4 nor more than 8 years for the above-mentioned offense.
The respondent testified that in 1927, he was arrested in New York City for abortion, but that the District Attorney permitted him to plead guilty to assault. There was introduced into evidence as exhibit 3, and the respondent identified as relating to him, certified copies of two indictements filed in the Court of General Sessions of the County of New York, on December 28, 1928, the first charging A---- B. M---- with feloniously possessing a narcotic and an anaesthetic, and, a second charging manslaughter in the first degree. There was introduced as part of exhibit 3 a certified copy of a sentence to the State Prison showing that A---- B. M----, on January 4, 1929, in the Court of General Sessions, County of New York, was sentenced to the State Prison for a period of not less than 2 nor more than 5 years for the crime of assault, second degree, committed on October 18, 1928. It is further shown that the respondent was convicted by confession of assault, second degree, to cover two indictments, manslaughter, first degree, and, feloniously possessing a narcotic and anaesthetic.
The warrant charge can be sustained only if each of the two crimes with which the respondent is charged involves moral turpitude. Abortion has been held to be a crime involving moral turpitude. (In the Matter of B----, 56113/313 (renumbered AR-5695775) (June 24, 1943)).
Although the respondent was indicted for the commission of two crimes, manslaughter in the first degree, and feloniously possessing a narcotic and anaesthetic, he was permitted to plead guilty to the lesser offense of assault, second degree. It is, therefore, necessary to determine whether or not this lesser crime is one involving moral turpitude. It has been held that the crime of assault in the second degree in the State of New York does not necessarily involve moral turpitude. U.S. ex rel. Zaffarano v. Corsi, 63 F. 2d 757. Therein it was stated that assault in the second degree is divided into five subdivisions and violation of some divisions of the section undoubtedly involves moral turpitude whereas violation of other divisions do not.
A situation similar to that in the instant case was considered in U.S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370. In that case an alien was charged in the indictment with the commission of assault in the first degree, but was permitted to plead guilty to assault in the second degree. The allegations in the indictment relating to assault in the first degree were disregarded, and only those relating to assault in the second degree were considered for the purpose of determining whether or not the offense was one involving moral turpitude. The Court said:
When confronted with the necessity of deciding whether the named crime to which the relator pleaded guilty involves moral turpitude, this court may, in reaching a decision, when the question is doubtful, look behind the plea to the charge or indictment upon which the plea was made for the purpose of determining the question.
In so doing, and particularly where the plea was to a crime not charged in the indictment and which have been necessarily included therein, this court may, and should determine for itself, not whether the realtor should have pleaded as he did nor whether the judgment of conviction of assault, second degree, is res adjudicata in this court, but whether the allegations pertinent to the crime to which plea of guilty was entered, state a crime involving moral turpitude. As to many of the lesser crimes, the question of moral turpitude is not determined by the name of the crime but by the nature of the crime as defined by the statute and alleged in the indictment.
In applying the reasoning of the Valenti case to the instant proceedings, we must first examine the indictment against the respondent, eliminate the allegations pertaining only to the greater offense; then, consider the remaining allegations to which the respondent pleaded guilty to determine whether or not they constitute a crime involving moral turpitude.
The indictment for manslaughter in this case charged that the defendant:
* * * upon one * * * did make an assault, and did then and there willfully and feloniously use and employ and cause to be used and employed a certain instrument to the Grand Jury * * * unknown, by then and there forcing, thrusting and inserting and causing to be forced, thrust and inserted, the said instrument into the womb and private parts of her * * * with intent thereby to procure a miscarriage of her, * * * giving unto her * * * divers mortal wounds, bruises, lascerations and contusions, of which * * * she * * * did languish and die."
The second indictment, charging the respondent with feloniously possessing a narcotic and anaesthetic reads as follows:
The defendant * * * not being a duly licensed physician or surgeon engaged in the lawful practice of his profession, did feloniously have in his possession * * * certain narcotic and anaesthetic * * * with intent to administer * * * without the consent * * * and without the direction of a duly licensed physician * * *.
In line with the Valenti case, the allegations relating only to manslaughter and only to felonious possession of a narcotic must be disregarded, and the remaining allegations considered to determine whether the offense (assault) involves moral turpitude. The relevant portion of manslaughter, first degree, section 1050 par. 2, New York Penal Law, is defined as follows:
A person who provides, supplies, or administers to a woman, whether pregnant or not, or prescribes for, or advises or procures a woman to take any medicine, drug or substance, or who uses or employs, or causes to be employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, or of any quick child of which she is pregnant, is thereby produced, is guilty of manslaughter in the first degree.
Section 1752 of the New York Penal Law defining the unlawful possession of narcotics, reads as follows:
Any person, other than a duly licensed physician or surgeon, engaged in the lawful practice of his profession, who has in his possession any narcotic or anaesthetic substance, compound or preparation, capable of producing stupor or unconsciousness, with intent to administer the same or cause the same to be administered to another, without the latter's consent, unless by direction of a duly licensed physician, is guilty of a felony, punishable by imprisonment in the State Prison for not more than 10 years.
We shall now examine the pertinent statute relating to assault. Section 242 of the New York Penal Code defines assault, second degree, as follows:
A person who, under circumstances not amounting to the crime specified in section two hundred and forty-two,
(1) With intent to injure, unlawfully administers to, or causes to be administered to, or taken by another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health, or,
(2) With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic or anaesthetic agent; or,
(3) Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon, or,
(4) Willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or
(5) Assaults another with intent to commit a felony or to prevent or resist the execution of any lawful process or mandate or any court or officer, or the lawful apprehension or detention of himself, or any other person, is guilty of assault in the second degree.
The crimes of feloniously possessing a narcotic, and assault, second degree, have no elements in common: therefore, the indictment relating to the former offense may be entirely disregarded. Eliminating the allegations relating only to manslaughter, it appears that the offense to which the respondent pleaded guilty was:
Willfully and feloniously did make an assault, and, willfully and feloniously did use a certain instrument to the grand jury unknown, by forcing, thrusting and inserting, and causing to be forced, thrust and inserted, the said instrument into the womb and private parts, with intent to procure a miscarriage, giving her mortal wounds and bruises.
We are of the opinion that the alien has been convicted of assault under subdivision (5) of section 242 — assault with intent to commit a felony. The alien stands charged with committing acts with "intent to procure a miscarriage." Section 80 of the New York Penal Law provides as follows:
A person who, with intent to procure the miscarriage of a woman, unless the same is necessary to save the life of the woman, or of the child with which she is pregnant * * * (2) Uses, or causes to be used, any instrument or other means is guilty of abortion.
"Procuring or attempting to procure a miscarriage of a woman", is the felony defined in section 80. We therefore conclude that the alien was convicted of assault with intent to commit the felony of abortion. Since abortion is a crime involving moral turpitude, the conviction for assault with intent to commit abortion under section 242, subdivision (5) of the New York Penal Law also involves moral turpitude.
The Commissioner is of the opinion that the alien could not have been guilty of a violation of subdivision (5); that the "intent to procure a miscarriage" should be eliminated from the information. Proper application of the Valenti theory eliminates those allegations which apply only to the greater offense; the intent to procure a miscarriage also pertains to the lesser offense of the assault and should not be eliminated. The charge in the warrant of arrest is sustained. Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Jamaica, the British West Indies, subject of Great Britain;
(2) That the respondent last entered the United States in July 1898 at the port of New York as a passenger on the S.S. Belle Clare;
(3) That the respondent was indicted for manslaughter, and on January 17, 1929, was convicted in the Court of General Sessions, County of New York, on his plea of guilty of assault, second degree, committed October 18, 1928;
(4) That, on January 29, 1929, the respondent was sentenced to the State Prison for a term of not less than 2 nor more than 5 years for the foregoing offense;
(5) That, on June 5, 1942, the respondent was convicted in the Court of General Sessions, County of New York, of the crime of Abortion, committed January 11, 1939;
(6) That, on June 23, 1942, the respondent was sentenced to imprisonment in the State Prison for a term of not less than 4 nor more than 8 years for the foregoing offense.Conclusions of Law: Upon the basis of the foregoing findings of facts, it is concluded:
(1) That under section 19 of the Immigration Act of February 5, 1917, as amended, the respondent is subject to deportation in that on or after May 1, 1917, he has been sentenced more than once to imprisonment for terms of 1 year or more because of conviction in this country of crimes involving moral turpitude committed after entry, to wit: assault, second degree, and abortion.
(2) That under section 20 of the Immigration Act of February 5, 1917, as amended, the respondent is deportable to Jamaica, British West Indies at Government expense.Other Factors: The respondent is single; has no relatives in the United States and no relatives in the British West Indies. Other than the offenses which form the grounds for deportation, he has been arrested on several occasions for playing "policy" numbers for which he received suspended sentences.
Since the alien is deportable as being a member of one of the classes enumerated in section 19 (d) of the act of 1917, as amended, he is not eligible for an exercise of discretion.
Order: It is ordered that the alien be deported to Jamaica, British West Indies at Government expense on the charge contained in the warrant of arrest.
It is further ordered, That execution of the warrant of deportation be deferred until the alien is released from imprisonment.