56079/473
Decided by the Board June 22, 1943.
Conviction of crime — By court martial (Canada).
Conviction by court martial for stealing the property of another soldier in violation of the Army Act of the Dominion of Canada is conviction of a crime involving moral turpitude within the purview of section 19 of the Immigration Act of 1917, as amended.
CHARGE:
Warrant: Act of 1917 — Convicted of crime prior to entry — theft.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The respondent is a native of Russia, 45 years of age, married but separated from his wife. He claims to be presently stateless. He last entered the United States on or about April 15, 1920, at Northport, Wash. In April 1916 the respondent entered the Canadian Army, in which he served until May 1919. In September or October 1916 he went overseas with his unit to the United Kingdom. On April 13, 1917, he was tried by court martial at Bramshott, England, on charges of stealing the property of another soldier and of receiving the said property, knowing it to be stolen. He was convicted on the first charge and sentenced to detention for 84 days. Evidence of the conviction appears in the record in the form of a certificate of the Canadian Judge Advocate General, reading:
I hereby certify that No. 252711, Private G. W----, then a soldier of the Canadian Garrison Duty Battalion, was at Bramshott, England on 13 April 1917, tried by a district court martial on the charge of stealing money and goods the property of a comrade, and on a second alternative charge of receiving, knowing them to be stolen, money and goods the property of a comrade; that the said court martial found the aforesaid soldier guilty of the first charge and not guilty of the second alternative charge and sentenced him to undergo detention for 84 days; the finding and sentence were duly confirmed.
Section 19 of the Immigration Act of 1917 provides for the deportation at any time after entry of an alien who has been convicted of a crime involving moral turpitude prior to his entry. The question presented for decision is whether the respondent's conviction by court martial is a conviction within the purview of section 19.
DISCUSSION: It is well settled that the record of a foreign court showing conviction is to be taken as conclusive evidence of conviction of the crime disclosed by it ( United States ex rel. Mylius v. Uhl, 203 F. 152 (D.C., N.Y., 1913), affd. 210 F. 860; United States ex rel. Schreiber v. Reimer, 19 F. Supp. 719 (D.C., N.Y., 1937); 39 Op. Atty. Gen. 95 (1937); 39 Op. Atty. Gen. 215 (1938)). However, whether the crime committed abroad involves moral turpitude under the immigration laws is to be determined by standards prevailing in this country (39 Op. Atty. Gen. 95, supra). That the crime of stealing property involves moral turpitude is not open to question ( United States ex rel. Chartrand v. Karnuth, 31 F. Supp. 799 (D.C., N.Y., 1940); United States ex rel. Rizzio v. Kenney, 50 F. 2d 418 (D.C., Conn., 1931)).
Had the respondent been convicted by a civil court, it is clear that the charge would be sustained. The Immigration and Naturalization Service has held without discussion that an alien convicted by a court martial of the United States Army of a crime involving moral turpitude prior to entry into the United States is subject to exclusion on that account under section 3 of the Immigration Act of 1917 ( In re W---- A---- S---- (55871/359, 1935)). The holding in the S---- case was reached despite an opinion of the Solicitor of Labor, to whom the question had been referred, that a conviction by a court martial did not warrant exclusion (Op. Sol. Labor (Dec. 14, 1934)). The Solicitor first pointed out that in the single case in which the issue had been presented to the courts, the court refrained expressly from deciding the point ( United States ex rel. Parenti v. Martineau, 50 F. 2d 902 (D.C., Conn., 1930)). He proceeded to state that since judicial authority relating to the meaning of a conviction was not so unequivocal as to necessarily exclude a conviction by a court martial, it was incumbent to examine the entire statute in order to ascertain the legislative meaning. He asserted that the provisions of section 19 excepting from the consequences of a conviction an alien who had been pardoned or an alien as to whom the court or judge recommended against deportation could not be reconciled with the notion that the judgments of military tribunals were within the purview of the section; and, finally, that in view of the principle that a penal statute should be strictly construed, the soundest construction of the statute should omit from its operation determinations of guilt not made under the criminal law administered by the civil authorities. Although it may be conceded, as the Solicitor maintains, that the issue is not free from difficulty, we think that consideration of the nature of court-martial proceedings leads to the conclusion that a conviction by a court martial should be accorded the same dignity and effect as a conviction by an ordinary civil court.
A court martial is a tribunal administering military law. Some form of tribunal for the trial of military offenders appears to have coexisted with the early history of armies. The first English courts martial came to exercise both civil and criminal jurisdiction with respect to members of the military forces. Having thus encroached upon the common-law courts, their jurisdiction was curtailed by acts of Parliament until, by the reign of Queen Anne, the courts martial exercised a trifling and little-used jurisdiction. By the time of the Revolution of 1688 the court martial had practically ceased to exist as a military tribunal. The Mutiny Act of 1689, however, expressly recognized and authorized the court martial, whose jurisdiction and powers, extended and developed in subsequent acts, were finally established and defined in the Army Act of 1881. The Dominion of Canada had adopted the Army Act to regulate discipline of its military forces. The jurisdiction of the English court martial extends to offenses against the ordinary criminal law committed by persons subject to military law. Ordinarily, persons subject to the criminal jurisdiction of the court martial are not exempted from prosecution in the civil courts, and a person tried by a court martial may thereafter be tried by a civil court, but in that event the civil court must have regard to the military punishment that the offender may have undergone. The court martial in its proceedings follows the common-law definitions of crime and common-law rules of evidence. Its judgment is conclusive, and the only issue reviewable by the civil courts is that of jurisdiction.
Union Bank of Canada v. Newcomen, 55 Ont. L.R. 17 (1924). BRITISH MANUAL OF MILITARY LAW. 1929, p. 239.
8 HALSBURY. LAWS OF ENGLAND. 2d Ed., p. 641. Courts martial of the United States have similar jurisdiction. WINTHROP, op. cit., p. 107.
Army Act, sec. 162 (1); HALSBURY, op. cit., vol. 28, p. 674, vol. 9, p. 54; BRITISH MANUAL OF MILITARY LAW, op. cit., pp. 566-567.
BRITISH MANUAL OF MILITARY LAW, op. cit., p. 22; GLENN. THE ARMY AND THE LAW. 1918, p. 38.
Ex parte John Fogan, 48 Dom. L.R. 194 (1919); WINTHROP, op. cit., p. 53.
Writers on the subject have expressed the view that a person tried by a court martial need fear its process to no greater or lesser degree than he need fear the power of a common-law court; that a court martial runs in parallel lines with civil courts and is not only consistent with, but essential to, constitutional and liberal government. In Ex parte Reed, 100 U.S. 13, 25 L. Ed. 538 (1879), the Supreme Court said:
GLENN, op. cit., p. 63.
1 WHARTON, CRIMINAL LAW. 12th Ed., 1932, p. 447.
Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest under like circumstances.
A former Attorney General said of courts martial (11 Op. Atty. Gen. 137, 140 (1865)):
When their proceedings have been consummated by the action of the competent revisory authority, the records of those proceedings should be regarded as standing upon the same footing, so far as the parties affected and the community at large are concerned, as the records of the ordinary tribunals of civil and criminal jurisdiction.
In this country a trial by court martial has been held to be due process of law and not to infringe the constitutional guaranties as to indictment and jury trial.
Kahn v. Anderson, 255 U.S. 1, 65 L. Ed. 469 (1921); Reaves v. Ainsworth, 219 U.S. 296, 55 L. Ed. 225 (1911); Terry v. United States, 2 F. Supp. 962 (D.C., Wash., 1933).
In a recent case a New York appellate court had occasion to deal with the question in a situation that we think cognate. There the relator had been sentenced as a second offender under section 1941 of the New York penal law, directing additional punishment for a person previously convicted of a crime, which, if committed within the State, would be a felony. He had been previously convicted by a court martial of the United States Army of sodomy, a felony in New York. He urged that a conviction by a court martial was not a conviction within the purview of section 1941 because in such court there is no indictment; the court is composed of Army officers, instead of persons skilled in the law; and appeals from its determinations are greatly restricted. The court, however, rejecting these arguments, said:
People ex rel. Stewart v. Wilson, 257 App. Div. 555, 13 N.Y.S. 2d 749 (1939), motion for leave to appeal denied, 281 N.Y. 888.
We see no merit in these contentions. The military courts are lawful tribunals. The previous conviction here was by a court of competent jurisdiction established by the Federal Government for a crime which if committed within the State would be a felony. The conviction is no less valid because of differences in procedure.
The respondent having been found guilty of stealing in violation of the Army Act, sentenced, and the sentence confirmed, we conclude that he has been convicted within the meaning of section 19 of the Immigration Act of 1917 of a crime involving moral turpitude prior to entry.
The charge appears to have been laid under sec. 18 providing "every person subject to military law who commits any of the following offences, that is to say, * * * (4) steals * * * any money or goods the property of a person subject to military law * * * shall, on conviction, be liable to suffer imprisonment or such less punishment as is in this act mentioned."
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Russia, and a citizen of the Union of Soviet Socialist Republics;
(2) That the respondent last entered the United States on or about April 15, 1920, at Northport, Wash.;
(3) That the respondent, while a soldier in the Canadian Army, was convicted on April 13, 1917, by court martial at Bramshott, England, of the charge of stealing the property of another soldier in violation of the Army Act.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of 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, stealing the property of another soldier in violation of the Army Act of the Dominion of Canada;
(2) That under section 20 of the Immigration Act of 1917 the respondent is deportable to the Union of Soviet Socialist Republics at Government expense.
OTHER FACTORS: The respondent is separated from his American citizen wife but has never been divorced. There is no issue of the marriage. He testified that on December 11, 1939, he was convicted in California on his plea of guilty of burglary and received a sentence of 6 months and was placed on probation for a period of 3 years. He states that he was released from imprisonment in July 1940. Since the respondent is deportable under the provisions of section 19 (d) of the Immigration Act of 1917, as amended, relating to the criminal classes, he is not eligible for discretionary relief provided by section 19 (c). An additional reason for ineligibility for such relief is that he has not been a person of good moral character for the preceding 5 years.
ORDER: It is ordered that the alien be deported to the Union of Soviet Socialist Republics, at Government expense, on the following charge: That he is in the United States in violation of the Immigration Act of 1917, in 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: stealing the property of another soldier in violation of the Army Act of the Dominion of Canada.