56065/532
Decided by the Board April 24, 1943.
Crime involving moral turpitude — Aggravated assault (Connecticut).
Aggravated assault in violation of section 6195, General Statutes of Connecticut, does not involve moral turpitude.
CHARGES:
Warrant: Act of 1917 — Convicted prior to entry of a crime involving moral turpitude — assault with a dangerous weapon.
Mr. William M. Kennedy, of Fairmont, W. Va., for the respondent.
Mr. Irving Jaffe, Board attorney-examiner.
STATEMENT OF THE CASE: This case relates to a native and citizen of Italy, 50 years of age and married. He first entered the United States on February 14, 1920, at the port of New York at which time he was lawfully admitted for permanent residence. He last entered the United States on February 5, 1927, upon presentation of a reentry permit following a temporary absence in Italy of about 1 year.
The charge contained in the warrant of arrest is based upon the respondent's arrest and subsequent conviction for the crime of assault with a dangerous weapon committed in Hartford, Conn., on August 26, 1924. The judgment of conviction rendered on September 23, 1924, indicates that the respondent pleaded guilty and was sentenced to pay a fine of $200, serve 6 months in jail, and pay the prosecution costs taxed at $13.24.
The only question presented for determination is whether the crime for which the respondent was convicted involves moral turpitude. In determining this question, we may not go beyond the record of conviction. The statute under which the respondent was convicted reads as follows:
SEC. 6195. Aggravated assault. — Any person who shall make an assault upon another with any deadly or dangerous weapon shall be guilty of an aggravated assault and shall be fined not more than $500 or imprisoned not more than 3 years or both (General Statutes of Connecticut).
DISCUSSION: It is to be noted at the outset that the statute above quoted requires no intent. The Supreme Court of Connecticut in State v. Costa, 95 Conn. 140, held that the absence of this factor differentiates aggravated assault from assault with intent to kill and assault with intent to maim or disfigure.
It is also noteworthy that the State of Connecticut classifies its criminal statutes under such headings as "offenses against the sovereignty of the state," "offenses agains the person," "offenses against property," "offenses against public peace and safety," etc. Although the offenses of assault with intent to kill and assault with intent to maim and disfigure are considered offenses against the person, the offense of aggravated assault is listed under "offenses against public peace and safety." It is grouped with such other offenses as participating in or witnessing prize fights, unlawful assembly and breach of the peace.
Moral turpitude is a vague term, but has been defined as an act of such baseness or depravity as to evince a wanton disregard of the personal and property rights of others. There is some doubt whether an unlawful act committed without intent can involve moral turpitude. It has been said that "it is in the intent that moral turpitude inheres" ( United States ex rel. Meyer v. Day, 54 F. 2d 336). In United States ex rel. Shladzien v. Warden, etc., 45 F.2d 204, the court said in this regard:
Assault and battery with intent to kill would, we think, be open to the general condemnation which is accepted as the ethical standard. The moral turpitude of the offense springs from the intent, and in this respect might be differentiated from a mere assault and battery, or even an aggravated assault and battery.
The determination of whether an assault and battery, other than assault with intent to kill involves moral turpitude has always been difficult. The courts in dealing with this problem have held that while moral turpitude is not necessarily involved in assault and battery, it is implied in an assault with a deadly or dangerous weapon. However, examination of the cases that have ruled that an assault with a dangerous weapon involves moral turpitude reveals that the statutes there under consideration differ materially from the Connecticut statute above quoted with which we are now concerned. In Weedin v. Tayokichi Yamada, 4 F.2d 455, the court in holding that an assault with a deadly weapon involves moral turpitude had before it the following statute of the State of Washington:
An assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show a wilful, malignant, and abandoned heart, shall subject the offender to imprisonment in the penitentiary not exceeding 2 years, or to a fine not exceeding $5,000, or to both such fine and imprisonment.
The Washington statute requires either an intent to inflict bodily injury or that the circumstances of the assault show a willful, malignant, and abandoned heart. Clearly, the conclusion reached in Weedin v. Yamada is not applicable to the Connecticut statute.
In construing the New York statute defining assault in the second degree, the court said in United States ex rel. Morlacci v. Smith, 8 F. 2d 663:
Mere assault and battery concededly does not involve such a degree of depravity, but an assault with a dangerous weapon, in this case a revolver, and shooting the person, is simply an act which includes something done by the assailant contrary to good morals and proper conduct.
An examination of the New York statute, shows that a specific intent is required, expressly as to subdivisions 1, 2, and 5 and by judicial interpretation of subdivisions 3 and 4.
SEC. 242. Assault in second degree.
A person who, under circumstances not amounting to the crime specified in section 240,
1. With intent to injure, unlawfully administers to, or causes to be administered to, or taken by another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or,
2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic or anaesthetic agent; or,
3. Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or,
4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or,
5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person,
Is guilty of assault in the second degree.
Subdivisions 3 and 4 of the New York statute deal with assault wherein weapons are employed, and in contradistinction to the Connecticut statute require that the assault be willful and wrongful — and in one instance that bodily harm actually result and in the other that the instrument or weapon used be such as is likely to produce grievous bodily harm. The Court of Appeals of the State of New York ( People v. Lay, 254 App. Div. 372, affirmed 279 N.Y. 737) in holding that intent is a necessary element of the crime of assault in the second degree employed the following language:
An intentional shooting is an assault. But if a person intentionally points a gun at another without intent to do harm, and discharges the gun without intent to do harm, as is sometime recklessly done in jest, then an assault is not committed, but there may be a crime * * *.
Furthermore, the court gave to the jury accurate definitions of assault in the first and second degrees, stating that intent to kill was essential to the first, and willful and wrongful infliction of grievous bodily harm to the second. In other parts of the charge the court may not have completely described the difference between the two degrees, but, taking the charge as a whole, the jury must have understood, under the facts, that in the case of first degree assault intent to kill was essential, while in second degree assault there must be an intent to do bodily harm and there could not be an assault without intent to injure.
Yet, under the New York statute, it has been held that the crime of assault in the second degree did not necessarily involve the element of moral turpitude, United States ex rel. Zaffarano v. Corsi, 63 F.2d 757.
The conclusion is inescapable that an assault and battery, though aggravated, does not involve moral turpitude unless the intention to do bodily harm to another is a necessary ingredient of the crime. The Connecticut statute does not require intent. Although the information filed against the respondent describes his act as willful and unlawful, it does not allege an intention to injure. We find that aggravated assault as defined in Connecticut does not involve moral turpitude.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, native and citizen of Italy;
(2) That the respondent last entered the United States at the port of New York on February 5, 1927;
(3) That the defendant was convicted on his plea of guilty in Hartford, Conn., on September 23, 1924, of the crime of assault with a dangerous weapon committed on August 26, 1924.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that he has been convicted of or admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude, to wit: assault with a dangerous weapon.
OTHER FACTORS: There are no other factors.
ORDER: It is ordered that the warrant of arrest be canceled and the proceedings closed.