56196/229.
Decided by Central Office February 21, 1946.
Crime involving moral turpitude — Malicious mischief — Violation of section 1433, Penal Law of State of New York (Injury to property).
Where a statute is so broad in nature as to include offenses which do and offenses which do not involve moral turpitude, and the record of conviction fails to show with sufficient particularity what offense was actually committed, it may not be concluded that the offense for which the alien was convicted is a crime involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Convicted of crime involving moral turpitude, to wit: Injury to property in violation of Section 1433 of the Penal Laws of the State of New York.
BEFORE THE CENTRAL OFFICE
Discussion: The appellant is an alien, a native and national of Canada, age 17, single, of white race, residing in Canada, who applied for temporary admission into the United States for 1 day, as a visitor, at the Thousand Islands Bridge, N.Y., on July 15, 1945. He was held for a Board of Special Inquiry on July 15, 1945, which hearing was reopened on July 30, 1945, and again on January 30, 1946, as a result of which he was ordered excluded on the above-stated ground. The matter is before us for consideration on appeal.
The reopened hearings were conducted in the absence of the appellant. In connection with the administrative rules governing a fair hearing, the comments on "in absentia" proceedings in Matter of T----, 56156/249, January 27, 1944, and Matter of M----, 56107/869, May 1, 1944, have been noted. While the record shows that the appellant did not identify what was introduced at the reopened hearings as his conviction record and the results of his appeal therefrom, in view of his apparent consent to have this material introduced in his absence, and because of the disposition to be made of his case, the evidence so introduced will be taken into consideration.
From the appellant's testimony at the original hearing and from exhibit 4 of this hearing record, it appears the alien was convicted on May 28, 1945, upon his plea of guilty to the charge of violation of section 1433 of the Penal Laws of the State of New York on May 28, 1945 (no jury demanded). The alien's appeal from this conviction by a police magistrate at Alexandria Bay, N.Y., was decided by a Jefferson County Court on January 14, 1946. The original sentence of 120 days' imprisonment was modified on appeal to "Time already served." On appealing, after a few days' confinement, the alien stated he was released on bail and was not prohibited from returning to Canada of his own accord. It appears from the county judge's letter of January 14, 1946, that the appellant was one of the five "Canadian boys who were charged before Police Justice Foerester in Alexandria Bay, N.Y., and sentenced to 120 days at Onondaga County Penitentiary," and that four of these five boys (including the appellant) had made restitution in the amount of $25 "apiece."
The question presented is whether the offense for which the appellant was convicted constitutes a crime which involves moral turpitude.
Under the New York State Penal Code, 20 separate sections (sections 1420-1437, including sections 1431 (a) and 1432 (a)) are by legislative scheme grouped together under the descriptive caption of Malicious Mischief. Most of these sections deal with the unlawful and willful damage, to, or destruction of, or interference with, the personal or real property of another. They provide penal consequences for conduct done with a bad intent or purpose which otherwise, would ordinarily constitute merely a cause of action in torts. In this manner, the State legislature provided "police" control over mischief of a malicious nature.
McKinney's Consolidated Laws of New York, Annotated, book 39, Penal Law, sets forth the provisions of section 1433 as follows:
Section 1433 — Injury to property; how punished:
A person who unlawfully and wilfully destroys or injures any real or personal property of another, or who without authority or permission from a person who has the right to give such authority or permission loosens any brake or blocking of any car standing on any railroad track in this State, or without like authority or permission, puts upon or runs any handcar, or other car, on any railroad track in this State, or without like authority or permission interferes or meddles with any brake or coupling of any car while standing or moving on any railroad track in this State, or takes any part therein, in a case where the punishment is not specially prescribed by statute, is punishable as follows:
1. If the value of the property destroyed, or the diminution in the value of the property by the injury is more than two hundred and fifty dollars, by imprisonment for not more than four years.
2. In any other case, by imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.
3. And in addition to the punishment prescribed therefore, he is liable in treble damages for the injury done, to be recovered in a civil action by the owner of such property, or the public officer having charge thereof.
From a reading of section 1433, supra, it is apparent that this statute is sweeping and general in nature, covering almost every crime against property, except those specifically provided for by other statutes ( People v. Knatt, 156 N.Y. 302). As to criminal punishment, this section is not applicable to cases categorically dealt with elsewhere in the law ( Hazak, Inc. v. Robertson Goetz Bldg. Co., 1943, 289 N.Y. 478). The intent with which the offense charged was committed is not material to be proved by the people, but the accused may submit evidence of excusable cause ( People v. Kane, 131 N.Y. 111). To be a willful act it must appear that it was not accidental nor done with justifiable excuse. A bad intent or purpose is implied in the offense. But the statutory definition is so broad it might include offenses like boring a hole in a baseball park fence or prying a fence board loose to commit a trespass or whittling at a porch railing or carving a name on a tree or post. It is manifest that such a definition is so broad as to include crimes which do not and those which do involve moral turpitude.
The moral turpitude may then be determined by consideration of the record of conviction (the indictment, pleas, verdict, and sentence), as stated in U.S. ex rel. Zaffarano v. Corsi ( 63 F. (2d) 757 (C.C.A., 2/1933)). The test in the United States is whether the act is accompanied by a vicious or corrupt mind ( U.S. ex rel. Mylius v. Uhl, 203 F. 152, affirmed 210 F. 860, C.C.A. 2, 1913). It is stated that it is in the intent that moral turpitude inheres ( Meyer v. Day, 54 F. (2d) 363; Mongiovi v. Karnuth, 30 F. (2d) 825), and that the moral turpitude of the offense springs from the intent ( Shladzien v. Warden, 45 F. (2d) 204).
The record of conviction in this case shows a plea of guilty to the charge of violating section 1433, supra (no jury trial demanded), for which he was convicted and sentenced. Exhibit 3 is the complaint on which the warrant of arrest was issued which refers to depositions desired to be reduced to writing by the informant in the complaint, and another witness. If we were to assume that exhibit 3 was the "information" in this record of conviction, it is noted that the appellant was charged that he "did commit the crime of malicious mischief. Viol. sect. 1433, Penal Law, State of New York, against the person or property of People of State of New York, by wrongfully, unlawfully, willfully, knowingly did unlawfully and willfully, enter the Dutch Reformed Church in Alexandria Bay, where therein damage to the property was done, church books, papers, etc., the said defendant being a member of a party who were in the church and thereby being a principal to a misdemeanor." This "information" indicates a charge in violation of section 1433, but adds little to the knowledge of the appellant's actual offense. What is merely shown is that he was a member of a party in the church where damage to property was done.
Section 27 of Penal Law of the State of New York provides that "A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor." Section 2 of the same law provides that "A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces, or procures another to commit a crime is a `principal'", and further provides, "A person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted or convicted, or has committed a felony, is an `accessory' to the felony." While it thus appears that the appellant was implicated as a principal, the conviction record before us does not clarify the alien's act and intent.
From the evidence of record, it cannot be concluded that the offense for which the alien was convicted is one which in itself is one of baseness, vileness, and depravity in the private and social duties which a man owes to his fellowmen or to society, as distinguished from an act which is wrong merely because prohibited by law and, moreover, is one stigmatized by law as a crime (37 Op. Atty. Gen. 293, 1933). It is concluded that the offense in question has not been shown to be a crime involving moral turpitude.
Since the only ground for his exclusion was his conviction for the offense in reference, the alien's appeal will be sustained.
Order: It is ordered that the appeal be sustained and the appellant admitted for a visit of 1 day.