A-6386124
Decided by Board August 8, 1947 Decided by Attorney General September 11, 1947
Crime involving moral turpitude — Assault with intent to do great bodily harm less than the crime of murder — Section 28.279, title 28, chapter 286a, Michigan Penal Code — Evil intent — Use of a dangerous weapon — Manner in which offense committed.
Under section 28.279, title 28, chapter 286a, Michigan Penal Code, the offense of assault with intent to do great bodily harm involves moral turpitude. (See 1 IN Dec. 52. Also see 3 IN Dec. 193.)
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Crime within 5 years — Assault with intent to do great bodily harm less than the crime of murder.
Act of 1917 — Sentenced more than once after entry for crime — Assault with intent to do great bodily harm less than the crime of murder, and breaking and entering with intent to commit larceny.
Lodged: None.
BEFORE THE BOARD
Discussion: The respondent is a native and citizen of Canada. He first entered the United States during January or March of 1911 at Detroit, Mich., accompanied by his mother of which entry, however, there is no record. He visited in Canada about December 22, 1930, and returned to the United States during March 1931. He has since remained here.
The respondent was admitted, on the occasion of his last entry during March 1931, upon his claim to being a citizen of the United States through his father. He discovered that he was not a citizen of the United States when he made application for derivative citizenship papers in 1945.
Therefore, since respondent was never lawfully admitted to the United States on the occasion of his last entry, as stated, he was required to have been in possession of an immigration visa, which document he admittedly did not have. Accordingly, he is subject to deportation on the documentary charge stated in the warrant of arrest.
The respondent was indicted in Detroit, Mich., on the charge that on June 25, 1931, he
with force and arms in and upon one P.P., with a certain dangerous weapon, to wit, a revolver pistol, feloniously, wickedly and with malice aforethought, did make an assault with intent him, the said, P.P., then and there feloniously, wickedly and of his malice aforethought, to kill and murder.
The respondent was found guilty, after trial by jury, on June 25, 1931, and was sentenced to the State prison for 5 to 10 years, the court recommending 5 years, for the crime of
assault with intent to do great bodily harm less than the crime of murder.
The respondent was again indicted in Wayne County, Mich., the indictment charging that on January 12, 1938, in the nighttime, he did break and enter a certain dwelling house with intent to commit larceny. He pleaded guilty and was sentenced to imprisonment for a term of 7½ to 15 years.
Section 19, Immigration Act of 1917, reads, in pertinent part:
* * * except as hereinafter provided, any alien who is hereafter sentenced to imprisonment for a term of 1 year or more (because of conviction in this country of a crime involving moral turpitude, committed within 5 years after the entry of the alien to the United States) or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry, * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * *.
Thus, it must be established that both convictions were for offenses involving moral turpitude, the other prerequisites being present.
The conviction for breaking and entering with intent to commit larceny is palpably one involving moral turpitude, and has been generally so held (see Matter of M----, 99481/695, October 14, 1946, and cases cited therein).
There remains for consideration the crime of assault with intent to do great bodily harm less than the crime of murder, with reference to the issue of moral turpitude.
Section 28.279, title 28, chapter 286a, Michigan Penal Code, under which respondent was found guilty, reads:
Any person who shall assault another with intent to do great bodily harm less than the crime of murder, shall be guilty of a felony, punishable by imprisonment in the State Prison for life or any number of years.
We previously considered this issue involving the foregoing statute in Matter of M----, 56050/886 (April 3, 1943), and concluded that the crime of assault with intent to do great bodily harm less than the crime of murder was not an offense involving moral turpitude. In thus concluding, we felt bound by the ruling of the Attorney General in Matter of B----, 56018/361 (May 27, 1941), which involved a corresponding Minnesota statute, the only difference being that the latter statute employs the phrase, "grievous bodily harm" in comparison with the Michigan statute's phrase of "great bodily harm."
A copy of the Board's opinion in the B---- case, holding the offense to involve moral turpitude, as well as a copy of the reversing opinion by the Attorney General, are attached for ready convenience. (See 1 IN Dec. 52.)
The offense of assault or assault and battery, or simple assault is generally held not to involve moral turpitude. On the other hand, assault with a deadly weapon has, in general, been held to involve moral turpitude. This element has been held not to be conclusively implied in a charge of aggravated assault and battery.
U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2d, 1933); U.S. ex rel. Griffo v. McCandless, 28 F. (2d) 287 (E.D. Pa., 1928).
Matter of K----, 56138/221 (November 12, 1943), sec. 28.277, Michigan Penal Code.
(California) Matter of G---- R----, A-4569802, 2 IN Dec. 733 (approved by the Attorney General May 29, 1947), which overrules a contrary holding in Matter of T---- G----, 56166/377 (May 30, 1944). 39 Op. Atty. Gen. 95, 98 (1935).
Cf. Matter of Z----, 56065/532 (April 24, 1943) (Connecticut) ( 1 IN Dec. 446), holding that an assault with a dangerous weapon in violation of sec. 6195, General Statutes of Connecticut, did not involve moral turpitude; that statute, it was pointed out, does not require an intent. (See 3 IN Dec. 193, overruling this case.)
U.S. ex rel. Griffo v. McCandless, 28 F. (2d) 287; Matter of M----, 55153/845 (January 22, 1944).
It would seem to be unimportant, so far as determining the presence of moral turpitude, that the statute here under consideration does not necessarily require as an element of the offense a dangerous or deadly weapon.
To support a charge of assault with intent to do great bodily harm less than murder, the intent must appear and the harm or injury intended must be serious and of an aggravated nature. The lesser assaults are not included therein and they must be specifically pleaded.
People v. Muskegon Circuit Judge, 88 Mich. 359.
In People v. Ocholski, the court observed that this section was designed to prescribe a more severe punishment than could be imposed under preexisting laws for assaults committed with intent to do serious injury of an aggravated nature; and it is not essential to a conviction under such statute, that the assault should have been such that, if death had resulted, respondent would have been guilty of murder.
115 Mich. 601.
The Service observes that in People v. Smith, 217 Mich. 669, it was stated that an assault with intent to do great bodily harm less than murder involves an assault which may be excusable or justifiable. What the court actually said, pertinent hereto, is this:
We are of the opinion that there was no sufficient proof to justify the submission of the case to the jury. The offense charged is statutory. It involves an assault which is usually defined as an attempt or offer with force and violence to do a corporal hurt to another. It may, of course, be excusable or justifiable. Coupled with it, there must be an intent to do great bodily harm less than murder. The harm or injury intended must be serious and of an aggravated nature ( People v. Troy, 96 Mich. 530, 537). In our opinion, there was nothing in the proofs on which the jury might find that an assault was committed, and certainly nothing from which it might even be inferred that the defendant intended to inflict serious bodily injuries on Mr. K----. At the rate of speed the truck was traveling when within but a few feet of him, he could have avoided injury by stepping out of the way. It is apparent that he was angered and lost his head. He no doubt felt, and rightly so, that defendent should have obeyed his signals and kept the truck out of the pit. But defendent's failure to do so, while a breach of his duty to his superior, in no way justified Mr. K---- in standing in the pathway of the truck and permitting it to knock him down. To convict the defendant, the jury must have found that he expected K---- to do just what he did do and that he intended to have the truck strike him and inflict serious injury on his person. There was no testimony from which an inference could be drawn that defendant anticipated, or should have anticipated, that such a result would follow his disobedience of K----'s orders. Proof from which such an intent may be inferred cannot be supplied by the mere fact that the injury was inflicted.
Crimes which are accompanied by an evil intent or a depraved motive, generally connote moral obliquity. It has been said that it is in the criminal intent that moral turpitude inheres. Under this generally accepted standard, it seems clear that the offense denounced by the Michigan statute under consideration involves moral turpitude, and as stated, the absence of a showing that a dangerous or deadly weapon was used is not the operative factor in determining the presence or absence of moral turpitude. Conceivably, an assault with a dangerous weapon may be committed in such a manner as to preclude an evil intent, and therefore baseness or vileness. In short, it is the purpose or intent which accompanied the perpetration of the crime, and the manner and nature by which it is committed, which determines moral turpitude. The seriousness of the crime denounced by the statute is reflected in the degree of punishment which the court may impose, that is, life or any number of years. There can be little or no difference then, so far as moral turpitude is concerned, between the offense of assault with intent to do great bodily harm less than the crime of murder, and assault with a deadly weapon.
U.S. v. Carrollo, 30 F. Supp. 36 (1939).
U.S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (1929); U.S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2d, 1931); U.S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (1930).
On this reasoning, were it not for the fact that it feels bound by the holding in the B---- case, this Board would be inclined to hold that a violation of the statute in question involves an offense connoting moral turpitude.
Accordingly, we shall adopt the findings of fact and conclusions of law, as modified by the Acting Commissioner.
However, because of the importance of the issue discussed above, the case will be referred to the Attorney General for review thereof.
Discretionary Relief — Other Factors: The alien has applied for voluntary departure. The Service has denied the application and ordered deportation. The alien has, in effect, resided here since 1911. He is married, and his wife, who is unemployed, is wholly dependent upon him for support. His wife is a citizen of the United States. In addition to the two convictions, the alien was also convicted in 1926 of the offense of carrying a concealed weapon. He appears to have been addicted to the use of intoxicating liquor for many years, but has abstained therefrom for the past 32 months.
On the record as a whole, we agree with the Acting Commissioner that discretionary relief is not indicated.
Order: It is ordered that the alien be deported to Canada at Government expense, on the following charge:
That under sections 13 and 14 of the Immigration Act of 1924, the respondent, at the time of entry, was an immigrant not in possession of a valid immigration visa, and not exempted from the presentation thereof by said act or regulations made thereunder.
In accordance with the provisions of title 8, Code of Federal Regulations, section 90.12, this case is certified to the Attorney General for review.
I agree with the reasoning of the Board that the crime of assault with intent to do great bodily harm under the Michigan statute involves moral turpitude. Therefore, the order of the Board is amended so as to direct deportation on the criminal grounds stated in the warrant as well as on the documentary ground.