55723/332
Decided by the Board November 17, 1941.
Crime involving moral turpitude — Manslaughter (Arizona).
Involuntary manslaughter in violation of section 4586 of the Arizona Code is not a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1917 — Crime prior to entry — manslaughter. Act of 1924 — Immigrant without immigration visa. Acts of 1917 and 1929 — Reentered after deportation without permission.
Lodged: Act of 1917 — Entered by false and misleading statements, thereby entering without inspection.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: Warrant of arrest on the above charges was issued August 28, 1941, served August 29, 1941, and a hearing held on the same day. The respondent waived representation by counsel. The presiding inspector found that the evidence supported the warrant and lodged charges, and recommended deportation.
The matter is now before this Board for review and decision.
DISCUSSION: The respondent testified that he is a native and citizen of Mexico, 37 years old, married. He stated that he last entered the United States in August 1939, by automobile at San Ysidro, Calif., by telling the inspector that he was a United States citizen. He did not have an immigration visa. The respondent stated that he first entered the United States at El Paso, Tex., when he was 4 or 5 years old. A letter dated El Paso, June 6, 1930, states that no record of this entry can be found. The respondent testified that he was deported from the United States on October 19, 1931, and on June 15, 1938, and that he has not applied for permission to reenter the United States.
The respondent testified that he was convicted of manslaughter in June 1930 in Arizona, and was sentenced to 3 years' imprisonment in the Arizona State Penitentiary. A statement by the Pima County attorney [sets forth] that the respondent on June 1, 1930, was driving an automobile while intoxicated, drove his car upon the sidewalk, and struck a woman, who subsequently died of her injuries. A copy of the conviction and sentence to a term of 3 to 10 years' imprisonment of the respondent for the crime of manslaughter [was produced].
Section 4586 of the Arizona Code provided:
Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary, upon a sudden quarrel or heat of passion; involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection.
From the facts set forth in the statement of the county attorney it is clear that in this instance the offense was of the second type, i.e., involuntary. There have been decisions both ways on the question of whether or not manslaughter involves moral turpitude. The decisions seem to turn, however, on the distinction between a killing resulting from intentional acts and an offense which at common law would amount to involuntary manslaughter. Only the former have been held to be crimes involving moral turpitude. In United States ex rel. Allessio v. Day, 42 F. 2d 217, it was held that manslaughter in the first degree involves moral turpitude. In Pillisz v. Smith, 46 F. 2d 769, respondent during an altercation attacked a neighbor with a knife, as a result of which the victim died. Respondent was convicted of manslaughter in Hungary, and it was held that the offense involved moral turpitude. In United States ex rel Sollano v. Doak, 5 F. Supp. 561, affd. 68 F. 2d 1019, the alien in the heat of passion shot his father-in-law with a revolver. The court held that the offense involved moral turpitude, the conviction being under section 1050 of the New York Penal Code, which so far as applicable provides:
Such homicide is manslaughter in the first degree when committed without design to effect death * * * (2) In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.
In the latter case the court expressly distinguished United States ex rel. Mongiovi v. Karnuth, 30 F. 2d 825, holding no moral turpitude involved in a conviction under section 1052 of the New York Penal Code, which defines second degree manslaughter as:
A crime committed without design to effect death: (1) By a person committing or attempting to commit trespass or other invasion of a private right, either of the person killed, or of another, not amounting to a crime; or (2) in the heat of passion, but not by a dangerous weapon or by use of means either cruel or unusual; or (3) by any act, procurement, or culpable negligence of any person which according to the provisions of this article, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.
The court stated:
As defined, manslaughter in the second degree does not include an evil intent or commission of the act willfully or designedly, and it expressly includes an act resulting in death without design to injure or effect death. These quoted subdivisions cover involuntary manslaughter of the common law, which likewise is committed without contemplating death, without malice, and without intent, and ordinarily committed while engaged in a lawful act, through carelessness or because of the absence of due caution or circumspection.In re Schiano Di Cola, 7 F. Supp. 194, held that manslaughter where such a charge arises from the involuntary injury to the person of another, resulting in death, through negligent or reckless operation of an automobile, does not involve moral turpitude. This case is squarely in point.
This Board has on several occasions held that manslaughter involves moral turpitude. In all of the cases, however, the acts resulting in death have been intentional. In re G---- C---- (55868/492) (conviction under Michigan statute defining manslaughter as causing death "by the discharge of any firearm pointed or aimed intentionally but without malice at such person." Decision states that the absence of intent is what reduces manslaughter from voluntary to involuntary manslaughter, and since by statute in this case the acts must be intentional, the offenses here involve moral turpitude); In re J---- R---- (55909/792) (indictment charges respondent willfully, unlawfully, and feloniously and without malice, killed a human being. Death resulted from stabbing. Decision states: "It has been the position of this Board that a necessary element in a crime involving moral turpitude is the element of intent." Requisite intent found in this case). In re P---- D---- (55944/389) (held voluntary manslaughter involves moral turpitude. Decision emphasizes that this was voluntary rather than involuntary); In re P---- H---- (56018/692) (respondent shot and killed a man in a quarrel over the latter's wife; held crime involved moral turpitude).
A summary of the authorities indicates that although manslaughter has in some instances been held to involve moral turpitude, in no case in which not only was the death caused without design, but the acts causing it were unintentional, has the offense been held to involve moral turpitude. This position is sound, since there is an absence of the requisite choice and judgment implied in the description of a crime involving moral turpitude as "an act of baseness, vileness, or depravity" (37 Op. Atty. Gen. 293). The charge that the respondent has been convicted prior to entry of a crime involving moral turpitude therefore cannot be sustained.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, and upon the entire record in this case, it is found:
(1) That the respondent is an alien, native and citizen of Mexico;
(2) That the respondent last entered the United States in August 1939, at San Ysidro, Calif.;
(3) That the respondent did not have an immigration visa at the time of last entry;
(4) That the respondent entered the United States for permanent residence;
(5) That the respondent entered the United States by representing himself to be a United States citizen;
(6) That the respondent was deported from the United States on July 15, 1938;
(7) That the respondent had not received permission to reapply for admission;
(8) That the respondent was convicted of involuntary manslaughter in Arizona in 1930.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 13 and 14 of the Immigration Act of 1924, the respondent is subject to deportation on the ground that he is an immigrant who entered without having an immigration visa;
(2) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that he entered the United States by false and misleading statements, thereby entering without inspection;
(3) That under section 19 of the Immigration Act of 1917, the respondent is subject to deportation on the ground that at the time of entry he was a member of a class excluded by law, to wit: section 1 (a) of the act approved March 4, 1929, as amended, being an alien who had been arrested and deported in pursuance of law and who had not been granted permission to apply for admission;
(4) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been convicted of or admits the commission of a crime involving moral turpitude prior to entry;
(5) That under section 20 of the Immigration Act of 1917, the respondent is deportable to Mexico, at Government expense.
OTHER FACTORS: The respondent is married to a native and citizen of the United States and has four American-born children, whose ages range from 5 to 13 years. Respondent has no relatives in Mexico; he has brothers and sisters in the United States. He testified that he is employed as a plasterer, and earns $24 a week, and that he supports his wife and children. Respondent's wife has written a letter requesting that he be permitted to remain in the United States, since he is attached to his children, has a good employment record, and is the sole support of his family.
Respondent has not registered under the Alien Registration Act of 1940, and he stated that he was arrested in San Pedro, Calif., in 1937 or 1938 for being drunk, and was sentenced to 5 days' imprisonment. These facts would not necessarily establish, however, that he is not a person of good moral character. There is nothing else in the record against the character of the respondent. Since the manslaughter offense in this case does not involve moral turpitude, respondent is not in the proscribed class under section 19 (d) of the Immigration Act of 1917, as amended. It therefore may be held that respondent has been a person of good moral character for the past 5 years, and is eligible for voluntary departure.
ORDER: It is directed that an order of deportation not be entered at this time, but that the alien be required to depart from the United States, without expense to the Government, to any country of his choice within 5 days under safeguards.
It is further ordered, That prior to departure, respondent be required to register under the Alien Registration Act of 1940.