55830/408
Decided by Board August 2, 1948
Crime involving moral turpitude — Malicious and wanton injury to property (1932) — Article 6, section 23-576, volume 3, Oregon Penal Code.
Maliciously and wantonly injuring and destroying personal property of another, to wit: two hogs belonging to another, by stabbing, striking, and killing said hogs with an axe, in violation of article 6, section 23-576, volume 3, Oregon Penal Code is an offense involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1929 — Previously arrested and deported-no permission to reapply.
Act of 1917 — Admits commission and convicted of crime involving moral turpitude, to wit: Malicious and wanton injury to personal property.
BEFORE THE BOARD
Discussion: This case presents an appeal from the order of the Acting Commissioner dated April 6, 1948, affirming the decision of the Board of Special Inquiry excluding the alien on the grounds set forth above, but without prejudice to reapplication for admission within 1 year from date of exclusion, and denying appellant's application for temporary admission under the ninth proviso to section 3, Immigration Act of 1917, as amended. The said order grants appellant permission to reapply for admission to the United States after arrest and deportation.
The only issue, as we see it, is whether the criminal offense is one involving moral turpitude and, if so, whether temporary admission under the aforementioned proviso is justified.
The appellant is a native and citizen of Canada, 41 years old. He claims to have resided in the United States from 1906 to 1915 and from 1916 to 1926. He thereafter reentered the United States and was deported September 12, 1933, on the ground that he had been sentenced to imprisonment for an indeterminate period of time not to exceed 2 years following conviction of the offense of malicious and wanton injury to personal property. This is the same offense which constitutes one of the charges in the present proceeding. The record shows that an information was returned against appellant in the Circuit Court for the county of Tillamook, State of Oregon, charging that on the 10th day of October 1932, he (appellant) then and there did maliciously and wantonly injure and destroy certain personal property of another, to wit, two hogs belonging to J.B. L----, by then and there stabbing, striking, and killing said hogs with an axe, and was sentenced by the court to undergo imprisonment in the Oregon State Penitentiary for an indeterminate period of time not to exceed 2 years.
Article 6, section 23-576, volume 3 of the Oregon Penal Code, reads as follows:
If any person shall maliciously or wantonly kill, wound, disfigure, or injure any animal, the property of another, or shall wilfully administer any poison to any such animal, or shall maliciously expose any poison with intent that the same shall be taken by any such animal, or shall maliciously or wantonly, in any manner or by any means, not otherwise particularly specified in this chapter, destroy, or injure any personal property of another, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than 6 months nor more than 3 years, or by imprisonment in the county jail not less than 3 months nor more than 1 year, or be fined not less than $50 nor more than $1,000 (L. 1864).
Section 23-111 of the Oregon Penal Code provides that the terms "malice" and "maliciously" when so employed, import a wish to vex, annoy, or injure another person, established either by proof or presumption of law. Section 23-113 thereof provides that the term "wantonly" when applied to the commission of an act, implies that the act was done with a purpose to injure or destroy without cause and without reference to any particular person.
Section 23-108 of the Penal Laws of Oregon provides that the term "wilfully" when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or omission referred to, and does not require any intent to violate the law, to injure another, or to acquire any advantage.
The term "wilfully" is equivalent to "knowingly." Wong v. Astoria, 13 Oreg. 528, 11 P. 295 (1886). "Willful" means a purpose or willingness to commit the act or omission referred to in this section and is equivalent to "knowingly." State v. Nease, 46 Oreg. 433, 80 P. 897 (1905).
The meaning of "willful" is not to be confounded with that of "wanton." McHargue v. Calchina, 78 Oreg. 326, 153 P. 99 (1915).
Section 23-109 of the Oregon Penal Laws provides that the terms "neglect," "negligence," "negligent," and "negligently" when so employed, import a want of such intent to the nature or probable consequences of the act or omission referred to, as a prudent man ordinarily bestows in action in his own concern.
It will be noted that the indictment avers the terms "maliciously" and "wantonly." An act which is done for sufficient cause has been held not to be done "wantonly." State v. Klein, 98 Oreg., 116, 193 P. 208 (1920). However, it has been held that the terms "wantonly" and "wilfully" are substantially the same. McHargue v. Calchina, 78 Oreg. 326 (1915). Thus we do not have a case where the act was merely accompanied by negligence or carelessness, but one which was perpetrated maliciously and wantonly. Although the statute does not contain a specific intent except where poison is exposed with the intent that same shall be taken by any animal, the statute obviously does require a motive which is manifested by the elements of malice and wantonness.
The term "moral turpitude" has generally been accepted as connoting an act of baseness, vileness, or depravity in the private and social duties owing to fellow men, and society in general, contrary to accepted and customary rules ( Ng Sui Wing v. U.S., 46 F. (2d) 755; 30 Op. A.G. 95 (1933)).
In our opinion the offense committed by the alien was vile and vicious. The fact that the delicti were animals, namely hogs, makes the offense no less tainted with baseness and certainly contrary to the private and social duties owing to fellow men and society in general. No doubt, the killing of the animals was not indulged in because of any enmity against them, but obviously because of some motive against the owner. Depriving the owner of his property in the manner adopted by the alien was certainly no less reprehensible than if he committed a theft against him. We think that the alien's conduct clearly evinced an act contrary to accepted standards of conduct in this country (39 Op. A.G. (1935), and cases cited therein).
The alien here desires to visit his mother who resides in Oregon. He states she is over 70 years of age and unable to visit him in Canada. He is steadily employed in that country and apparently his purpose is bona fide. Also, it appears that since the conviction in 1932 his conduct has been satisfactory. We feel that on the record as a whole his admission for a reasonable time to visit his mother should be authorized.
Order: It is ordered that notwithstanding the alien's conviction on October 15, 1932, in the State of Oregon, of the offense of maliciously and wantonly injuring and destroying personal property of another, or because of his admission of the commission thereof, he be admitted to the United States for a period not to exceed 29 days in order that he may visit his mother in the State mentioned, pursuant to the authority contained in the ninth proviso to section 3 of the Immigration Act of 1917, as amended.