A-6516788.
Decided by Central Office January 27, 1947. Decided by Board February 3, 1947.
Crime involving moral turpitude — Theft (Canada, 1940) — Violation of section 347 of the Criminal Code of Canada — Evidence of "permanent taking" — Promoting juvenile delinquency of minors (1940) — Violation of section 33, subsection 1 (b) of the Juvenile Delinquents Act of Canada.
1. Theft in violation of section 347 of the Criminal Code of Canada involves moral turpitude where evidence shows a "permanent taking" was intended.
2. The promotion of juvenile delinquency in violation of section 33, subsection 1 (b) of the Juvenile Delinquents Act of Canada, by "taking part" in a certain theft does not involve moral turpitude where the evidence showed no exercise of will upon the minors by force or otherwise and the tendency to corrupt the minors was read from his "taking part" in the theft.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Admits commission of theft.
Act of 1917 — Convicted of crimes; theft and promoting juvenile delinquency.
BEFORE THE CENTRAL OFFICE
Discussion: On August 1, 1946, the appellant applied for admission into the United States at Detroit, Mich., and was held for a Board of Special Inquiry, which after hearings conducted on August 1 and December 25, 1946, ordered him excluded on the above-stated grounds. He has appealed from this decision.
The appellant testified that he is a 22-year-old married male, an alien, a native and citizen of Canada, who has never been heretofore admitted to the United States for permanent residence, but who has been here on visits only.
The appellant testified that he was arrested about three or four times; the first time being about 1937 or 1938 for running away from home; the next time about 1939 for stealing a bicycle; the next time for stealing 5 bottles of Coca — Cola, which occurred about in 1941; and he was charged a little while later with stealing gum and that he was given 16 months in a home as a sentence.
He testified that he has never served in the armed forces of any country because he was disqualified, he believes, on account of rupture. He states that he was married on September 29, 1945, but that he is not now living with his wife and has been separated from her about 9 months.
There was introduced into the record as exhibit 1 a record of the appellant's conviction and sentence in Canada on October 24, 1940, upon his plea of not guilty for having on October 14, 1940, unlawfully, knowingly or wilfully done an act or acts producing, promoting or contributing to three minors, aged 13, 13, and 10 years respectively, being or becoming juvenile delinquents or likely to make these minors juvenile delinquents by taking part in the theft of a carton of chewing gum in value of $20, the property of a certain transportation company, in violation of the provisions of section 33, subsection 1. (b) of the Juvenile Delinquents Act of Canada.
The record further shows that upon his plea of guilty he was convicted and sentenced on October 24, 1940, for having on October 14, 1940, unlawfully stolen one carton of Dentyne chewing gum valued at less than $25, the property of the Martin Transport Co.
There was introduced into the record as exhibit 3 an information record showing breach of recognizance while on suspended sentence after being duly convicted on October 24, 1940, for theft and contributing to juvenile delinquency, which shows that he was put on probation for 2 years after having failed to keep the peace and be of good behaviour. Such action was taken on March 13, 1941, at Hamilton, Ontario, Canada, where both of the above convictions had occurred.
The appellant was asked what he intended to do with the chewing gum and he said that he intended to "just eat it and give it away." It is apparent that the appellant intended to deprive the rightful owner of his property, in connection with this theft as to which he had been convicted upon his plea of guilty and sentenced on October 24, 1940. It is therefore concluded that this offense for which the appellant was convicted is one which involves moral turpitude. His plea of guilty is deemed to constitute an admission of the commission of this offense ( Blumen v. Haff, 78 F. (2d) 833 (C.C.A. 9, 1935), cert. denied, 296 U.S. 644).
The appellant testified that he was born on April 22, 1924. The convictions under consideration related to offenses committed on October 14, 1940, at which time the appellant was over 16 years of age and was not deemed to be a juvenile delinquent in the Province of Ontario, Canada, where he was convicted. It is noted that he is shown as an adult in the record introduced as exhibit 1, hereinbefore discussed.
The other offense for which the appellant was convicted in 1940, upon his plea of not guilty, relates to the promotion of juvenile delinquency in three minors, as a result of the appellant's having taken part in the theft of a carton of chewing gum in the value of $20. This appears to be the same carton of chewing gum for which he was convicted on the charge of having stolen the same. The question arises as to whether such contribution to the delinquency of these minors is to be deemed an offense involving moral turpitude. To determine this matter it must be ascertained whether immoral conduct was or was not necessarily involved (Board of Immigration Appeals, 56094/542 Nov. 17, 1944).
In connection with the offense in question, the particular immoral element involved in connection with the promotion of juvenile delinquency was stated to be "by taking part" in a theft. It does not appear that the appellant induced these minors to take part in the theft but it is only stated that by taking part in the theft he tended to corrupt the three minors also involved. It thus appears that the appellant's conduct was held to be deleterious to the morals of the accompanying minors, by virtue of the appellant's example and not by the exercise of his will upon the minors by force or otherwise. It is therefore concluded that the record does not establish that the offense in question for which he was convicted in 1940 under the provisions of section 33, subsection 1 (b) of the Juvenile Delinquents Act of Canada was one which involved moral turpitude.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Board of Special Inquiry and read to the alien on December 25, 1946, are hereby adopted except finding of fact No. 3 which is modified to read as follows:
(3) That you have been convicted of violation of section 33, subsection 1 (b) of the Juvenile Delinquents Act of Canada in 1940 for unlawfully, knowingly, or willfully doing an act or acts producing, promoting or contributing to three named minors, of the ages of 13, 13, and 10 respectively, being or becoming juvenile delinquents or likely to make such minors juvenile delinquents, by taking part in the theft of a carton of chewing gum, value $20, the property of a certain transportation company;
and conclusion of law No. 1 is modified to read as follows:
(1) That under section 3 of the act of February 5, 1917, you are are not inadmissible to the United States as a person who has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Promoting juvenile delinquency in Canada in 1940 in violation of section 33, subsection 1 (b) of the Juvenile Delinquents Act of Canada, by taking part in a certain theft.Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed on the following ground:
That under section 3 of the act of February 5, 1917, the appellant is subject to exclusion to the United States on the grounds that he is a person who admits the commission of and was convicted of a felony or other crime involving moral turpitude, to wit: Theft in Canada in 1940 (sec. 347, Criminal Code of Canada).
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed.