A-5530239.
Decided by Central Office May 14, 1946. Decided by Board November 19, 1946. Ruling by Attorney General July 18, 1947.
Crime involving moral turpitude — Voluntary manslaughter — Ohio — Evidence.
Where the indictment for murder in the second degree (Ohio) charged that the alien unlawfully, purposely, and maliciously killed a human being, and the alien pleaded guilty to the lesser offense of manslaughter, it may be concluded that the homicide committed by the alien was voluntary, and hence that it involved moral turpitude though the Ohio Statute defining manslaughter (Ohio General Code, Sec. 12403) makes no distinction between voluntary and involuntary manslaughter (the Ohio courts holding it embraces both).
CHARGE:
Warrant: Act of 1917 — Sentenced more than once; Manslaughter and manslaughter.
BEFORE THE CENTRAL OFFICE
(May 10, 1946)
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the alien on August 24, 1944, are hereby adopted, except that there is added finding of fact (7):
(7) Under Ohio law a sentence to an indeterminate period for conviction of manslaughter means a term of imprisonment of not less than 1 year or more than 20 years.
The respondent is a 62-year-old male, native and citizen of Roumania, formerly Hungary, who last entered the United States at that port of New York, N.Y., on April 2, 1906, ex-S.S. Pannonia and was admitted for permanent residence. On November 27, 1926, in the Court of Common Pleas, Cuyahoga County, Ohio, the respondent was convicted on his plea of guilty of Manslaughter as charged in the indictment and was sentenced to imprisonment to the Ohio State Penitentiary for an indeterminate period. All sentences to the Ohio Penitentiary for felonies except treason and murder in the first degree are for an indeterminate term which shall not be less than a minimum nor more than a maximum term provided by law for such felony (Page's Ohio General Code Annotated, sec. 2166).
It is noted that in both of the convictions, a plea of guilty of the crime of Manslaughter was accepted after an indictment charging Murder in the Second Degree. This latter offense is defined in the Ohio General Code as follows:
Section 12403. Murder. Second Degree. Whoever purposely and maliciously kills another * * * is guilty of Murder in the Second Degree and shall be imprisoned in the penitentiary during life.
Manslaughter is defined as follows:
Section 12404. Manslaughter in the First Degree. Whoever unlawfully kills another * * * is guilty of Manslaughter in the First Degree and shall be imprisoned in the penitentiary not less than 1 year, nor more than 20 years.
Section 12404-1. Manslaughter in the Second Degree. Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this State applying to the use or regulation of traffic on, over, or across the roads or highways shall be guilty of Manslaughter in the Second Degree and shall be fined not to exceed $500 or imprisoned in the county jail or workhouse not less than 30 days nor more than 6 months, or both, or imprisoned in the penitentiary not less than 1 year or more than 20 years.
The indictment in each instance alleged that the respondent "unlawfully, purposely, and maliciously killed." Reference to the definitions of Manslaughter as set forth makes it evident that the respondent was convicted of Manslaughter in the First Degree. The acceptance of the plea of Manslaughter to the indictment which charges Murder, Second Degree, removes the elements of purpose and malice, the element of unlawful killing remaining.
Unlawful killing, as used in Manslaughter, must be such as would naturally, logically, and proximately result from the commission of some unlawful act as defined by statute, and such unlawful act must be one that would be reasonably anticipated by an ordinarily prudent person as likely to result in such killing. State v. Schaeffer, 96 O.S. 214, 117 N.E. 220; Jackson v. State, 101 O.S. 152, 127 N.E. 870; Black v. State, 103 O.S. 434, 795; Bell v. State, 70 App. 185.
The crime of Manslaughter in the First Degree under the indictment in this case and under the Ohio Statute constitutes Voluntary Manslaughter, since it is an unlawful killing arising as a proximate result of an unlawful act. Voluntary Manslaughter has consistently been held to involve moral turpitude. Matter of N----, 55723/332 (Nov. 17, 1941); Matter of L----, A-5978164 (March 27, 1946). It is therefore held that the crimes of Manslaughter, First Degree, of which the respondent was convicted in this case, involves moral turpitude.
The respondent has no family or property ties in the United States.
Order: It is ordered that the alien be deported to Roumania at the expense of the Government on the charge contained in the warrant of arrest. It is further ordered, That the execution of the warrant of deportation be deferred until the alien is released from imprisonment.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the alien August 24, 1944, are hereby adopted except that there is added finding of fact (7):
(7) A sentence to an indeterminate period for conviction of manslaughter under Ohio law represents a term of imprisonment of not less than 1 year or more than 20 years;
and conclusion of law (1) is amended to read as follows:
(1) That under section 19 of the Immigration Act of 1917, the respondent is not subject to deportation on the ground that he has been sentenced more than once to imprisonment of terms of more than 1 year because of conviction in this country of crimes involving moral turpitude, to wit: Manslaughter and Manslaughter.
Respondent, a native and citizen of Roumania, formerly Hungary, male, 62 years of age, last entered the United States at the port of New York on April 2, 1906, ex — S.S. Pannonia and was admitted for permanent residence. The respondent was convicted in the Court of Common Pleas, Cuyahoga County, Ohio, on November 27, 1926, on his plea of guilty of manslaughter as charged in the indictment and was sentenced to imprisonment in the Ohio Penitentiary for an indeterminate period. Respondent was again convicted of the same crime in the same court on September 24, 1943, on a plea of guilty as charged in the indictment and was again sentenced for an indeterminate period, which sentence he is at present serving. All sentences to the Ohio Penitentiary for felonies except treason and murder in the first degree are for an indeterminate term which shall not be less than a minimum or more than a maximum term provided by law for such felony (Page's Ohio General Code, Annotated, sec. 2166).
The indictment in both cases stated the crime of murder in the second degree. However, a plea of guilty to the crime of manslaughter was accepted in both instances. The crime of manslaughter is defined by the Ohio General Code as follows:
Section 12404. Manslaughter in the First Degree. Whoever unlawfully kills another * * * is guilty of Manslaughter in the First Degree and shall be imprisoned in the penitentiary not less than 1 year, nor more than 20 years.
Section 12404-1, Manslaughter in the Second Degree, relates to an unintentional killing while engaged in the violation of a traffic law. It provides for a fine not to exceed $500, or imprisonment in the county jail or workhouse not less than 30 days nor more than 6 months, or both, or imprisonment in the penitentiary not less than 1 year or more than 20 years. Section 12404-1 was repealed by legislative enactment effective September 6, 1941 (Laws of Ohio, vol. 119, pp. 766-804, sec. 112). The second crime for which respondent was convicted occurred subsequent to the repeal of this statute. As stated above, the indictments in both cases charged murder in the second degree in that respondent "unlawfully, purposely, and maliciously killed" etc. The acceptance of the plea of "guilty" of manslaughter to the indictment which charges murder, second degree, removes the elements of purpose and malice and there remains only the element of unlawfully killing.
The courts of Ohio have consistently held that the crime of manslaughter as defined by Ohio statute includes both voluntary and involuntary. Black v. State, 103 O.S. 434; Johnson v. State, 56 O.S. 59; Bandy v. State, 102 O.S. 384. In McCoy v. State, 14 O.L.A. 363 (1933), the court stated that there were two types of manslaughter under Ohio statute, voluntary and involuntary, and that in the crime of manslaughter the unlawful act must be made so by statute as there are no common-law crimes in Ohio. It is well to note the extremes to which the decisions go in the State of Ohio so amply illustrated by the Black and McCoy cases ( supra). In the Black case two Akron, Ohio, police officers, following an argument as to the respective merits of their service revolvers, decided to engage in target practice in a saloon where they were having a few drinks. A small target was placed at the rear end of the saloon. Some six or seven shots were fired by the officers. One of the shots penetrated the rear wall of the saloon and fatally wounded one G---- who happened to be passing in the rear. Although it was impossible to determine which shot killed G----, both officers were convicted of manslaughter. The State contended that the unlawful act in which the police officers were engaged was the violation of an Ohio statute which prohibits target practice within the limits of a municipal corporation. In the other case, the defendant McC---- owned and operated a combined restaurant and billiard hall in New Washington, Ohio. About 1:30 a.m. Sunday morning January 1, 1933, the defendant (McC----) decided to close his place of business. He advised all present as to his intentions but the young men filled with the spirit of the occasion (New Year's Eve) laughingly refused to leave. Thereupon defendant reached under the counter and took out a .32 Colt Automatic and in order to frighten the young men, including the deceased, fired two shots into the floor behind the counter. Defendant then proceeded to the other end of the counter and fired another shot into the floor. He then walked south in front of the counter and fired two more shots into the floor. One of the shots ricocheted, struck deceased, and resulted in his death. The evidence clearly established that defendant had no malice or ill will toward any of the young men and that the shooting was unintentional. The defendant entered a plea of not guilty to the charge of manslaughter, waived a jury trial and was tried by the court. The State contended that the defendant's action in shooting off the firearm was an unlawful act as it violated a statute designed to prevent desecration of the Sabbath. The court ruled, however, that the time, place, and surrounding conditions did not indicate a desecration of the Sabbath. Defendant's act therefore was not unlawful and he was acquitted.
Both the indictments and the judgments of conviction in the case at bar are silent as to the details of the circumstances surrounding the killings. We are unable to determine from the record whether the crimes for which respondent was convicted amounted to voluntary or involuntary manslaughter. Relying upon the decisions of the Ohio courts as illustrated above, the fact that respondent was indicted for murder, second degree, cannot be said to be conclusive that the crime committed amounted to voluntary manslaughter. We are not permitted to go behind the record ( Mylius v. Uhl, 203 F. 152 (S.D.N.Y., 1913)) to determine just what transpired. The immigration laws require that the crime committed by the alien involve moral turpitude. We must determine in each case, therefore, "that which must be shown to establish the guilt of the alien." Accordingly, the definition of the crime must be taken at its minimum. Under the rule laid down in Mylius v. Uhl ( supra), our hands are tied in a situation where the statute includes crimes which involve moral turpitude as well as crimes which do not inasmuch as an administrative body must follow definite standards, apply general rules and refrain from going behind the record of conviction. It is true that in rare instances this rule results in a finding of nondeportability in some cases where the offense is indicative of bad character "but such results always follow the use of fixed standards and such standards * * * are necessary for the efficient administration of the immigration laws" Mylius v. Uhl ( supra). This Board has on numerous occasions held that the crime of involuntary manslaughter does not involve moral turpitude. Cf. Matter of S----, 56020/580 (June 5, 1943); Matter of N----, 55723/332 (November 17, 1941). Accordingly, we must find the charge as stated in the warrant of arrest not sustained.
In sustaining the charge the Central Office of the Immigration Service has cited several Ohio cases. A review of these cases indicates that they all involve the crime of involuntary manslaughter. The Central Office cites a portion of the syllabus from the Black case ( supra) which states that the unlawful act as defined by statute must be one that could be reasonably anticipated by an ordinary prudent person as likely to result in such killing and for this reason necessarily involves moral turpitude. The court, however, at page 436, conceded that manslaughter as defined by Ohio statute included both voluntary and involuntary manslaughter, but that in the instant case the killing was unintentional, the result of the commission of an unlawful act and by necessity involuntary manslaughter. It is generally accepted that involuntary manslaughter does not involve moral turpitude in the absence of an intent to kill or an intent to inflict serious bodily injury, Mongiovi v. Karnuth, 30 F. (2d) 825 (D.C.N.Y., 1929); In re Schiano Di Cola, 7 F. Supp. 194 (D.C.R.I., 1934). We find no evidence of such intent in the case at bar.
Order: It is ordered that the warrant of arrest in this case be withdrawn and the proceedings thereunder terminated.
The alien was indicted in Ohio in 1936 and again in 1936 and again in 1943 for murder in the second degree. The indictments each alleged that the alien "unlawfully, purposely and maliciously killed" certain named persons. On each occasion the alien pleaded guilty to the lesser offense of manslaughter and was sentenced to serve an indeterminate term of imprisonment.
While the Ohio statute defining manslaughter (Ohio General Code, sec. 12403) draws no distinction between voluntary and involuntary manslaughter, the Ohio courts have held that the statute embraces both ( Johnson v. State, 66 O.S. 59, 63 (1902); Black v. State, 103 O.S. 434 (1921); McCoy v. State, 14 O.L.A. 363, 364 (1933)). In construing the immigration laws, the courts have consistently held that voluntary manslaughter involves moral turpitude, and that involuntary manslaughter does not. The majority of the Board, relying upon Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y., 1913), could not find from the records of conviction that the killings in this case were voluntary and, accordingly, concluded that the crimes did not involve moral turpitude.
The indictments for murder in the second degree clearly charge the alien with two voluntary killings. By his pleas of guilty to manslaughter, the alien admitted these killings. In the absence of other evidence in the records of conviction, under the Ohio Statute it is reasonable to conclude that the homicides committed by the alien were voluntary. Consequently, the crimes involved moral turpitude.
The decision and the order of the Board of Immigration Appeals dated November 19, 1946, are reversed and the decision and order of the Commissioner of Immigration and Naturalization dated May 19, 1946, are approved.
Discussion: The respondent testified that he was born in Hungary on March 19, 1884. He stated that he is a citizen of Hungary of the Magyar race, and a laborer by occupation. The alien is now 62 years of age. He is an inmate of the Ohio penitentiary. The respondent is single and according to his testimony he arrived in the United States in the spring of 1906 on the S.S. Panonia. Deportation proceedings were instituted by the issuance of a warrant of arrest on January 19, 1944, charging the respondent as hereinabove set out.
The record discloses that during the September term of 1936 the subject hereof was indicted in the Court of Common Pleas, Cuyahoga County, Ohio, as follows:
That J---- S---- on or about 22d day of October 1936 at the Court aforesaid unlawfully, purposely, and maliciously killed G---- K----.
On November 27, 1936, the defendant retracted his plea of guilty, therefore entered, and for plea to said indictment, saith he is guilty of Manslaughter as charged in the indictment; * * *. [Italics supplied.] He was ordered imprisoned in the Ohio State Penitentiary, Columbus, Ohio, for an indeterminate period and to pay the costs of prosecution.
During the September term of the same court in the year of 1943 a second indictment was returned against J---- S---- in that on or about the 25th day of July 1943 at the County aforesaid, he unlawfully, purposely, and maliciously killed M---- K----.
On September 24, 1943, the defendant withdrew a prior plea of not guilty and entered a plea of guilty of Manslaughter as charged in the indictment. [Italics supplied.] Whereupon he was ordered imprisoned and confined in the Ohio State Penitentiary, Columbus, Ohio, for an indeterminate period and to pay the costs of prosecution.
Section 19 of the Immigration Act of February 5, 1917, provides for the deportation of an alien who has been sentenced more than once to imprisonment for a year or more for the commission after entry into the United States of crimes involving moral turpitude.
39 Stat. 889-890, 8 U.S.C. sec. 155.
Section 12404 of Page's Ohio General Code Annotated defines manslaughter as follows:
Whoever unlawfully kills another, except in the manner described in the next five preceding sections, is guilty of manslaughter in the first degree, and shall be imprisoned in the penitentiary not less than 1 year nor more than 20 years.
Section 12404 of the Code of Ohio and Section 12404-1, to amend section 12404 and to supplement sec. 12404 by the enactment of supplemental sec. 12404-1 of the General Code of Ohio relative to the definition of manslaughter were contained in Amended Senate Bill No. 290 passed May 1, 1935, and approved May 17, 1935. Sec. 12404-1 was repealed on May 19, 1941.
The intention of Congress as set forth in Report 352 to accompany H.R. 19384, 64th Congress, 1st session, Senate Reports, volume 2, is as follows:
As the act now stands the House has added, at the suggestion of its Committee (vol. 53, Congressional Record, pp. 5932-5933), a provision intended to reach the alien who after entry shows himself to be a criminal of the confirmed type, such aliens to be deported without limitation on the length of time after entry when they commit a second serious offense (p. 43, lines 6-9); * * *
It should be noted that the indeterminate term of imprisonment for the offense of manslaughter in Ohio is not less than 1 year nor more than 20 years. In determining whether an alien sentenced for a crime is subject to deportation the period of the indeterminate sentence is measured by the possible maximum during which the alien is liable to serve.
U.S. ex rel. Parenti v. Martineau, D.C. Conn. 1931, 50 F. (2d) 902; U.S. ex rel. Popoff v. Reimer, C.C.A. New York 1935, 79 F. (2d) 513; also U.S. ex rel. Guarino v. Uhl, D.C. New York 1939, 27 Fed. Supp. 135.
The only question presented in this case is whether or not the two offenses committed by this respondent in the State of Ohio denoted in the indictments as Murder in the Second Degree, for which offenses a plea of guilty to the crime of manslaughter was entered and accepted and for which offenses the alien received indeterminate terms of imprisonment of more than 1 year involve moral turpitude.
The majority of the Members of the Board of Immigration Appeals are of the opinion that the offenses do not involve moral turpitude. The Commissioner of Immigration and Naturalization is of the opinion that the offenses do involve moral turpitude and that the alien is, therefore, subject to deportation and I agree with the conclusion of the Commissioner for the reasons hereinafter set forth.
Moral turpitude has been variously defined. The definition set forth in the footnote as to moral turpitude is supported by many adjudicated cases.
(41 C.J. 212) "It is a vague term, its meaning depending to some extent upon the state of public morals. It is defined as anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. * * * Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. It must not merely be mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude. Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude."
* * * The term moral turpitude within the provisions of sec. 19 of the act of February 5, 1917, connotes an act of baseness, vileness, or depravity in private or social duties owing to fellowmen or society in general contrary to accepted and customary rules. Ng Sui Wing v. U.S., C.C.A. Ill. 1931, 46 F. (2d) 755. See also U.S. ex rel. Ciarello v. Reimer, D.C. New York 1940, 32 Fed. Supp. 797.
U.S. v. Uhl, 203 F. 152; Coykendall v. Skrmetta, 22 F. (2d) 120; and Sipp v. Coleman, 179 Fed. 997.
In considering whether or not a crime involves moral turpitude the entire record must be considered, that is the charge (indictment), plea, verdict, and sentence. U.S. ex rel Zaffarano v. Corsi, 63 F. (2d) 757.
In the case at the bar an indictment for murder, second degree, was filed. A plea of guilty of the offense of manslaughter was accepted. All of the elements of voluntary manslaughter are present in the indictment.
Manslaughter is defined to be the unlawful and felonious killing of another, without malice aforethought, either expressed or implied, and is either voluntary or involuntary homicide depending upon the fact whether there was an intention to kill or not. Manslaughter is distinguished from murder by the absence of deliberation and malice aforethought. The intent to kill being formed suddenly under the influence of violent passion or emotion which, for the time being, overwhelms the reason of the accused. It is not the weapon used, nor the intention to kill, which fixes the grade of the crime, but the uncontrollable passion, aroused by adequate provocation, which for the time being renders the accused incapable of reasoning and unable to control his actions.
Wharton on Criminal Law, vol. 1, sec. 421, p. 597, 599; Bouvier Law Dictionary, vol. 2, p. 2084; 4 Bla. Com. 190; 1 Hale Pl. Cr. 466.
Wharton on Criminal Law, vol. 1, sec. 422, pp. 599, 600, and 601.
That the offense here committed by this alien is voluntary manslaughter cannot be questioned for the reason that he was indicted for murder in the second degree as hereinabove set forth. Voluntary manslaughter being defined as an intentional killing, without malice, in hot blood produced by adequate cause * * *.
Wharton on Criminal Law, vol. 1, sec. 424, p. 603.
Where there is an absence of design to effect death or grievous bodily harm the homicide is voluntary manslaughter, and not murder, although the act was unlawful and malicious. Wharton's Criminal Law, vol. 1. sec. 426, p. 624; Walters v. Con, 44 Pa. 135 (1862).
Support for the contention that the offense committed by this alien is voluntary manslaughter in the first degree is obtained from the provisions of the Statutes of Ohio passed on May 21, 1941, section 6307-18 which defines manslaughter in the second degree and provides the penalty therefor as follows:
(a) Whoever shall unlawfully and unintentionally ill another while engaged in the violation of any law of this State applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.
(b) Any person convicted of manslaughter in the second degree shall be fined not to exceed five hundred dollars ($500) or imprisoned in the county jail or workhouse not less than 30 days nor more than 6 months, or both, or imprisoned in the penitentiary not less than 1 year nor more than 20 years.
Prior to the codification of the criminal statutes in the State of Ohio manslaughter was defined:
That if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act; every such person shall be imprisoned in the penitentiary, and kept at hard labor not more than 10 years nor less than 1 year (vol. 1, S. C. p. 403).
The present section is not different in substance and meaning from the original section above quoted and it is incumbent upon the State to establish that the killing was done either upon a sudden quarrel, or unintentionally while the slayer is in the commission of some unlawful act ( Johnson v. State, 66 O.S. 59, 63 N.E. 607; and State v. Schaeffer, 96 O.S. 215, 117 N.E. 220).
Malice is not a necessary ingredient to manslaughter but the act of maliciously killing, unintentionally, is manslaughter, nevertheless. The presence of the aggravating ingredient, malice, does not render the act less criminal than it would have been without malice ( Nichols v. State, 8 O.S. 435).
It should be noted that one who unintentionally shoots and kills another by discharging firearms on his own premises is not guilty of manslaughter, since this is not an unlawful act punished by G.C. Sec. 12817, Martin v. State, 70 O.S. 219.
While it is true that section 12401-1 of the General Code of the Ohio Statutes was repealed on May 21, 1941, as pointed out by the majority, yet the aforementioned section 6307-18 was enacted on that date.
See p. 805, vol. 119, Laws of Ohio, 1941.
Legislation comparable to that in the State of Ohio covering the offense of manslaughter has been passed in many states.
Ala., Code 1928, § 4460 et seq.; Cal., Deering's Penal Code 1931, § 192, 193; Idaho, Code 1932, § 17-1106, 17-1107; Ill., Smith-Hurd Rev. Stat. 1933, ch. 38, § 361 et seq.; Ind., Burns' Stat. 1933, § 10-3405; Ky., Carroll's Stat. 1936, § 1150; Mass., Gen. Laws 1932, ch., 265, § 13; Mich., Comp. Laws 1929, § 16601-6; Mo., Rev. Stat. 1929, § 3988 et seq.; N.Y., Cahill's Consol. Laws, ch. 41, § 1049 et seq.; Oreg., Code 1930, § 14-205, et. seq.; Pa., Purdon's Stat. 1936, title 18, § 2225; Tenn., Williams' Ann. Code, § 10774; W. Va., Code 1937, §§ 5919, 5920.
The Board of Review and the Board of Immigration Appeals since the passage of the act of February 5, 1917, have consistently held that offense of manslaughter (as here committed) as one involving moral turpitude.
R---- N---- 55723/332 (11/17/41); Arizona held moral turpitude; P---- S----, 56131/71 (8/21/43); S---- P----, 56073/321 (5/11/44); A---- M----, 56113/232 (12/13/44); L---- N----, 2427436 (1/29/42); R---- D----, 56137/380 (10/26/43). Unless averments in the indictment establish otherwise, murder without malice under the Tex. Crim. Code is tantamount to voluntary manslaughter.
The courts have likewise held that the offense of manslaughter (as here committed) is one involving moral turpitude. More recently in the case of M---- D----, number 3517270, 9/13/46, the respondent was indicted for murder in the second degree, in that he did with malice aforethought wilfully and deliberately assault and stab F---- C---- * * * in the heart with a knife and thus did murder the said F---- C---- * * *. This person was convicted of a crime of manslaughter and the Board of Immigration Appeals held that the offense was one involving moral turpitude.
U.S. ex rel. Sollano v. Doak, 5 Fed. Supp. 561; U.S. ex rel. Allessio v. Day, C.C.A. New York 5/19/30, 42 F. (2d) 217; Pillisz v. Smith, 46 F. (2d) 769, C.C.A. 7th, 1931.
The cases cited by the majority are somewhat confusing because they were decided considerably before the repeal of 12404-1 and the changed amendment set forth.
The Circuit Court of Appeals for the Seventh Circuit in the case of Pillisz v. Smith in passing upon the question of whether or not the offense of manslaughter is one involving moral turpitude said among other things:
We know of no greater moral law than that which discountenances the taking of human life without excuse, and one who violates it is to that extent morally depraved. We hold, therefore, that moral turpitude was involved in the crime for which the alien was convicted.
Considerable dependence in the determination of what offenses involve moral turpitude is placed by the majority upon the case of Mylius v. Uhl (203 Fed. 152) wherein the Court said:
Immigration authorities * * * must follow definite standards and apply general rules. Consequently, in classifying offenses I think that they must designate as crimes involving moral turpitude those which in their inherent nature include it. Their function is not, as it seems to me, to go behind judgments of conviction and determine with respect to the acts disclosed by the testimony the questions of purpose, motive and knowledge which are often determinative of the moral character of the acts.
In that case the alien there concerned was an applicant for admission to the United States. It was established that he had been convicted in England of the offense of Criminal Libel in that he had published defamatory statements regarding His Majesty the King.
The majority emphasizes the foregoing case as to the method in determining whether or not the offense committed involves moral turpitude, but the court was concerned there with a criminal libel committed in England and whether or not that offense is one involving moral turpitude. That case has but little persuasion when applied to manslaughter; the serious offense of the unlawful taking of a human life. But even if we do apply the reasoning in that case to our determination of the issues involved in the case under consideration we should not lose sight of the fact the court said undoubtedly there may be cases in which the facts would show on the part of the libeler the malignity of purpose and depravity of disposition conclusively indicating moral turpitude.
The offenses of manslaughter to which respondent pleaded guilty as charged in the indictment are so contrary to good morals, so discountenanced and establish such moral depravity as in my opinion involve moral turpitude. Consequently, after careful consideration of all the evidence of record and for the reasons hereinabove set forth it is my conclusion that the two offenses of manslaughter committed in the State of Ohio involve moral turpitude and the respondent is consequently subject to deportation.
A dissent having been recorded, in accordance with section 90.12, title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.