56205/971.
Decided by Board April 2, 1946.
Crime involving moral turpitude — Larceny — Lewd and lascivious cohabitation — Lewd and lascivious person in speech and behaviour (Massachusetts).
1. The crime of "lewd and lascivious person in speech or behaviour" (ch. 272, sec. 53, General Laws of Massachusetts) involves moral turpitude.
2. The crime of "lewd and lascivious cohabitation" (ch. 272, sec. 16, General Laws of Massachusetts) involves moral turpitude.
3. The crime of larceny involves moral turpitude.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once for crimes committed after entry, to wit: Lewd and lascivious cohabitation; larceny (four times); lewd and lascivious person in speech and behaviour.
Discussion: The respondent is a 55-year-old native and citizen of Canada who has been living in this country since April 1909. Her last entry occurred in June of 1911 when she was returning from a brief visit in Canada.
In August 1928, a complaint was filed against the respondent in the District Court of Franklin County, Mass., charging that she and one G---- P----, "not being married to each other, did lewdly and lasciviously associate and cohabit together." This offense, a felony, was committed on August 18, 1928. The respondent was convicted and on August 20, 1928, she was sentenced to the reformatory for women for a term of 5 years. She served about 26 months of this sentence.
Sec. 18, ch. 279, General Laws of Massachusetts, reads:
"A female sentenced to the reformatory for women for larceny or any felony may be held therein for not more than five years, unless she is sentenced for a longer term, in which case she may be held therein for such longer term; if sentenced to said reformatory for any other offense, she may be held therein for not more than two years."
On September 23, 1943 the respondent was again sentenced to the reformatory for women on five separate and distinct charges. One of the charges was the alien's violation on August 21, 1943 of that portion of section 53 of chapter 272 of the General Laws which punishes "lewd, wanton and lascivious persons in speech or behaviour." The other four charges were based on separate larcenies committed by the respondent in 1943. The sentences were all imposed at the same time and were all made to run concurrently. The sentences were for terms not to exceed 2 years.
The issue raised in this case in whether the offenses committed by the respondent involve moral turpitude. Larceny has always been considered to be such a crime. In addition, "that portion of section 53 of chapter 272 under which the respondent was convicted in 1943 has been held by the First Circuit Court of Appeals in Lane ex rel Cronin v. Tillinghast, 38 Fed. (2d) 231 (1930) to involve moral turpitude."
The 1928 complaint was based on that part of section 16 of chapter 272 of the General Laws which reads:
A man and woman who, not being married to each other, lewdly and lasciviously associate and cohabit together, * * * shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.
This offense is more serious than fornication for the latter crime is punishable under section 18 of chapter 272 of the General Laws by imprisonment for not more than 3 months or by a fine of not more than $30. Moreover, it is considered to be a more heinous offense than either adultery or bigamy, offenses which in Massachusetts do not require an evil intent. Commonwealth v. Munson, 127 Mass. 459 (1879); Commonwealth v. Hunt, 58 Mass. 49 (1849). And, incidentally, bigamy is a crime involving moral turpitude. Matter of E----, 56107/653 (July 11, 1945).
Again, the offense under consideration is not aimed at isolated acts of incontinence. It was designed "to prevent evil and indecent examples, tending to corrupt morals." Commonwealth v. Calef, 10 Mass. 153 (1813). To support a conviction for lewd and lascivious cohabitation, "it is necessary to prove not only that a man and woman, `not being married to each other,' `cohabited together' but that they so cohabited `lewdly and lasciviously'; — implying an evil intent which cannot be inferred from the mere fact * * * of cohabitation under an honest, though mistaken, belief that the parties were lawfully married to each other." Commonwealth v. Munson, supra, p. 470.
In view of these considerations we believe that the offense of which the alien was convicted in 1928 involves moral turpitude. The respondent is subject to deportation on the warrant charge.
Findings of Fact: Upon the basis of all the evidence presented, it it found:
(1) That the respondent is an alien, a native and citizen of Canada;
(2) That the respondent last entered the United States in June 1911;
(3) That in August 1928, the respondent was convicted of the crime of lewd and lascivious cohabitation in violation of section 16 of chapter 272 of the Massachusetts General Laws, the crime having been committed on August 18, 1928;
(4) That for the foregoing offenses the respondent was sentenced on August 20, 1928 to the reformatory for women for a term of not more than 5 years,
(5) That in September 1943, the respondent was convicted on four larceny charges and of being a lewd, wanton person in speech or behavior in violation of section 53 of chapter 272 of the General Laws, these crimes having been committed in 1943;
(6) That for the foregoing offenses the respondent was sentenced on September 23, 1943 to the reformatory for women for concurrent terms of 2 years each.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the act of February 5, 1917, the respondent is subject to deportation on the charge that on or after May 1, 1917 she has been sentenced more than once to imprisonment for terms of 1 year or more because of convictions in this country of crimes involving moral turpitude committed after entry, to wit: Lewd and lascivious cohabitation, larceny (4 times); and lewd and lascivious person in speech or behavior;
(2) That under section 20 of the Act of February 5, 1917, the respondent is deportable to Canada at Government expense.Other Factors: The respondent is the mother of four legitimate and five illegitimate children. The youngest child is about 19 years of age. All of her children were born in this country. She was divorced by her husband in 1928.
Order: It is ordered that the alien be deported to Canada at Government expense on the charge contained in the warrant of arrest, the crimes to be described as "lewd and lascivious cohabitation, larceny (four times), and lewd and lascivious person in speech or behavior."