A-4692681.
Decided by Board June 24, 1946. Approved by Attorney General August 1, 1946.
Crime involving moral turpitude — Indecent exposure — Section 335, Michigan Statutes, Annotated (1935), volume 25.
Indecent exposure, committed openly and designedly in a public place, in violation of section 335, Michigan Statutes Annotated (1935), volume 25, is a crime involving moral turpitude.
CHARGES:
Warrant: Act of 1917 — Admits commission of crime prior to entry; indecent exposure.
Act of 1917 — Convicted of crime prior to entry; indecent exposure.
BEFORE THE BOARD
Discussion: The evidence establishes that the respondent is a native of Austria — Hungary, citizen of Romania, 56 years of age, who arrived in the United States on March 27, 1907, at the port of New York, on which occasion he was admitted for permanent residence. With the exception of a visit of 1 day in Canada in July of 1938 or 1939, he has maintained continuous residence in this country.
The charge against the respondent is that he had been convicted of and admitted commission of an offense involving moral turpitude prior to entry, to wit: Indecent exposure. If the offense is determined to be one involving moral turpitude, as required by the applicable statute. the respondent becomes deportable.
The indictment filed against the respondent in the Recorder's Court, Detroit, Mich., during the July 1936 term avers that:
on the 17th day of May A.D. 1936, at the said city of Detroit, in the county aforesaid, did designedly make an open, indecent, and obscene exposure of his person in the presence of one J---- G----; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.
Sec. 335, Michigan Statutes Annotated (1935), vol. 25: Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior; or who shall designedly make any open or indecent or obscene exposure of his or her person, or of the person of another, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than one (1) year, or by fine of not more than five hundred (500) dollars. No prosecution shall be commenced under this section after one (1) year from the time of committing the offense.
It will be noted that the statute requires that the offense be perpetrated designedly, and the information so avers. Moral turpitude is, of course, a vague term, but its meaning is understood. It has been defined time and again as an act of baseness, vileness, and depravity. We are limited in the first instance to an examination of the statute which denounces the offense. The offense must be in essence of that nature.
It is not necessary that the offense of indecent and obscene exposure of the person and of the persons of others, provided by this section, be particularly well defined, as the average jury has an instinctive realization of what constitutes a violation of the act ( People v. Ring, 267 Mich. 657).
The gist of the offense is an intentional or designedly made exposure in the presence of others * * * and that "open" as used in the statute means an exposure in such manner and place as to be a public exposure, that is, not within a concealed place or inclosure ( People v. Kratz, 230 Mich. 334).
Indecent exposure of one's person on the front porch of his city dwelling was not done in the privacy of his home but in a public place and constituted disorderly conduct ( People v. DeVine, 271 Mich. 635).
A charge under this section of indecent and obscene exposure by defendent of his person and of the persons of others was sustained by the evidence that defendant operated at a point about one and one-half miles from a State highway in a more or less secluded location a nudist camp consisting of tents and temporary buildings surrounded by a second growth of scrub oak in a clearing of about 3 acres and that officers who visited the camp found about 15 or 20 naked men, women, and children, consisting of defendant and his wife, other married couples, 2 unmarried men and some children, associating and playing harmless games ( People v. Ring, 267 Mich. 657).
For nudism as indecent exposure, and criticism of People v. Ring, supra, see 92 A.L.R. 993. See comment in 33 Mich. L. Rev. 936.
Ng Sui Wing v. United States, 46 F. (2d) 755 (C.C.A. Ill. 1931).
Mylius v. Uhl, 210 Fed. 860 (C.C.A. 2d 1914).
Under the pertinent statute herein involved, to constitute the offense it must be committed openly and designedly in a public place. Done in private it is not cognizable as an offense in which the public or society has an interest.
At common law indecent exposure was denounced as an offense. It is more serious than mere disorderly conduct. It connotes a degree of lewdness and, palpably, is contrary to good morals and recognized sound social conduct. Such an act done without design or because of some justifiable cause would not be cognizable under that section but would likely be treated as mere disorderly conduct.
Commonwealth v. Broadland, 315 Mass. 20 (1943).
Cf. Matter of M----, 56083/647 (Apr. 9, 1943), which held a conviction for lewdness under section 2458, Remington's Revised Statutes of Washington, was not convicted of an offense involving moral turpitude as the statute was sufficiently broad to include offenses not involving moral turpitude; Matter of C----, 4942217 (Sept. 9, 1944), which held conviction for indecent exposure in violation of ch. 16, sec. 272, Massachusetts Statutes, did not involve moral turpitude.
Cf. also Matter of P----, 56124/801 (renumbered A-3748813) (June 23, 1944) holding conviction for contributing to delinquency of minors did not involve moral turpitude under the laws of the State of Washington, although the information charged an indecent exposure in the presence of two 10-year old children.
But see Matter of J----, 56008/874 (Apr. 2, 1946); Matter of M----, 56205/971 (Apr. 2, 1946), involving convictions for open and gross lewdness; and lewdness, denounced by secs. 36 and 16, ch. 272, Mass. Gen. Laws, respectively, holding the offenses to involve moral turpitude.
Cf. People v. DeVine, 271 Mich. 635.
Since the information charges the offense to have been committed designedly, it implies an evil intent and we are satisfied that the offense for which respondent was convicted involves moral turpitude.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Austria — Hungary, citizen of Romania;
(2) That the respondent first arrived in the United States at the port of New York on March 27, 1907, and was admitted for permanent residence;
(3) That the respondent last entered the United States at Detroit, Mich., during July of 1938 or 1939, following an absence of 1 day in Canada;
(4) That the respondent was convicted on January 7, 1937, of the offense of indecent exposure at Detroit, Mich.;
(5) That the respondent has not made a direct admission of the commission of the said offense.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 ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Indecent exposure;
(2) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that he admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to wit: Indecent exposure;
(3) That under section 20 of the act of February 5, 1917, the respondent is deportable to Romania at Government expense.Other Factors: Respondent has requested that the discretion contained in the seventh proviso to section 3 of the Immigration Act of 1917 be favorably exercised in his behalf. If the discretion is justified, and is exercised favorably, the alien may be treated as having been admitted to the United States on the occasion of his last entry in July of 1938 or 1939 at Detroit, Mich. ( Matter of L----, 56019/808, Aug. 29, 1940).
The Commissioner has recommended that the alien be deported "since he has no ties in this country and since some dubiety has arisen in regard to his character."
While it is true the alien has no ties in this country, he being single, the case is exceptionally meritorious and on this premise the discretion should be exercised. As stated above, the alien is 56 years of age and single. He was born in 1889 in what was then Austria — Hungary and what is now Romania. Because of this situation it is somewhat doubtful whether travel facilities, that is passport, can be obtained and deportation effected. In any event, the crime for which the alien was convicted and placed on probation was not without extenuating circumstances. We may consider these circumstances in connection with the exercise of the discretion in question. It appears that on the occasion of the offense the alien was in his own home and had taken a bath and while proceeding from the bathroom to another part of the house he was undressed and was observed through an open window by one or two girls. The alien stated that the act was not deliberate and that he was not aware that he had been seen.
The respondent's explanation of the circumstances surrounding the commission of the offense is not, of course, reconcilable with the averment in the indictment, to which he pleaded guilty. However, his statement that he did not intentionally commit the offense may represent the fact in his mind. Nevertheless, the court did not subject the respondent to any punishment but placed him on probation. Apparently, the court did not find the case without extenuating circumstances. Likewise, the same benefit may be resolved in the respondent's favor in the exercise of the discretion he now seeks in this proceeding.
The offense, of course, occurred in 1936, more than 10 years ago. The alien has resided in this country for a period of 39 years. He has never before been in trouble with the police. He was steadily employed until October 1943 when he was forced to give up employment because of ill health. He owns two houses in which he has an equity of $3,600 and on which he owes $1,900. He receives $71 per month rental and pays out $31 per month. At the present time he has about $700 in war bonds. Since December 1945 he has again become employed by the Atlas Pattern Manufacturing Co., Detroit, Mich., as a pattern maker and receives $2.40 an hour.
The evidence of record does not justify a finding that the alien's moral character is questionable. In fact, the evidence supports the finding that the alien's moral conduct has been favorable and the same is true as to his attitude toward the American form of government. The alien stated that he has been attending classes in Americanization in order that he may qualify himself for citizenship.
Upon a careful examination of all the evidence it is felt that the alien should be treated as having been readmitted into the United States and the proceedings canceled.
Order: It is ordered that the alien be treated as having been readmitted to the United States at Detroit, Mich., during July of 1938 or 1939, notwithstanding his conviction on January 7, 1937, at Detroit, Mich., of violation of section 335 of the Michigan Penal Code of 1931 (indecent exposure), pursuant to the discretion contained in the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended.
It is further ordered, That the proceedings be closed.
As the order involves the exercise of the seventh proviso to section 3 of the Immigration Act of 1917 in accordance with section 90.12, title 8, C.F.R., the Board refers the case to the Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals dated June 24, 1946, are hereby approved.