A-1333197
Decided by Board November 17, 1949
Crime involving moral turpitude — Lewdness (open) — New Jersey.
The offense of open lewdness in violation of New Jersey Revised Statutes 2: 140-1 (1942) involves moral turpitude. (See 2 IN Dec. 533.)
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for crimes — Keeping place of prostitution and open lewdness.
BEFORE THE BOARD
Discussion: This record is before us on appeal from an order entered by the Assistant Commissioner May 26, 1949, directing the respondent's deportation to Italy on the charge stated above. Execution of the warrant of deportation was stayed for a period of 30 days from date of notification of decision for the purpose of permitting the respondent to file an application for a pardon. Counsel on appeal takes exception to the order on the ground that one of the crimes which serves as a basis for deportability does not involve moral turpitude.
The respondent, a native and citizen of Italy, male, 56 years of age, unmarried, testified that he last entered the United States at the port of New York on April 21, 1912. This entry cannot be verified. There is affirmative evidence that the respondent was convicted, of the crime of keeping place for prostitution, in the Court of Oyer and Terminer, Passaic Country, N.J., on December 10, 1926, and was sentenced to imprisonment for a term of 1 year, of which sentence he actually served 10 months in prison. There is also affirmative evidence that the respondent was convicted on December 10, 1926, in the Court of Oyer and Terminer, Passaic County, N.J., of the crime of attempt and intent to receive earnings of a prostitute, for which sentence was suspended. The respondent admits that on December 18, 1942, he was convicted in the Court of Oyer and Terminer, Passaic County, N.J., of the crime of open lewdness, for which he was sentenced to imprisonment for 2 years, of which sentence he actually served 9 months and 20 days' imprisonment.
Counsel contends that the crime of which the respondent was convicted in 1942 was not open lewdness but fornication, a crime which does not involve moral turpitude. We think counsel's position, untenable for the reasons stated below.
The 1942 conviction was on an indictment in two counts. The pertinent portion of the first count reads as follows:
That R---- C---- and (respondent) * * * wilfully and unlawfully did openly and notoriously live, dwell and cohabit with each other in lewdness, fornication and adultery, they the said R---- C---- and (respondent) not being married to each other to the great scandal and common nuisance of the people of this State and to the corruption of their morals and to the evil example of all others in like case offending * * *.
Count two of the indictment merely charges a single act of fornication.
We feel reasonably certain that the first count above referred to is intended to allege a violation of New Jersey Revised Statutes 2:140-1, which provides as follows:
Any person who shall be guilty of open lewdness or any notorious act of public indecency, grossly scandalous, and tending to debauch the morals and manners of the people, or who shall in private be guilty of any act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, shall be guilty of a misdemeanor.
The sole issue before us is whether the foregoing statute defines a crime involving moral turpitude. Counsel in his brief argues that the indictment does not allege lewdness in the sense of indecent exposure in public or perverted sex acts, but merely charges that the respondent unlawfully cohabited with a woman not his wife openly and notoriously in the sense that the community knew about it and that such illicit cohabitation in private cannot be said to involve moral turpitude.
In dealing with the subject of "open lewdness," the New Jersey Court of Errors and Appeals has said:
Neither adultery nor fornication, committed in secret and not constituting cohabitation publicly indecent in the manner of association, is lewdness within the intentment of our law. Originally, the Crimes Act condemned only "open lewdness, or any notorious act of public indecency grossly scandalous and tending to debauch the manners and morals of the people * * *." Private or secret indecency is not criminal, since the common law does not deem such offensive to the public morality ( Schoudel v. State, 57 N.J.L. 209).
In 1906 the cited provision of the Crimes Act relating to lewdness was amended to include within that criminal category persons "who shall in private be guilty of any act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the manners and morals of the people." * * * Lewdness within the concept of the statute, imports some degree of sexual aberration or impurity. It denotes gross and wanton indecency in the sexual relations ( State v. Brenner, 132 N.J.L. 607, 609, 610).
As used in a similar statute rendering "open lewdness," criminal, the term has been defined as "the irregular indulgence of lust whether public or private" ( Commonwealth v. Wardell, 128 Mass. 52; 35 Am. Rep. 357). Criminal lewdness as defined by the statute of Massachusetts has been found to connote moral turpitude ( Lane ex rel. Cronin v. Tillinghast, 38 F. (2d) 231 (C.C.A. 1, 1930)).
Chapter 272, section 53, Annotated Laws of Massachusetts, "lewd, wanton, and lascivious persons in speech and behavior * * * may be punished by imprisonment in the Massachusetts Reformatory, etc.
Because of the interpretations above referred to by the State courts of both New Jersey and Massachusetts and the Circuit Court of Appeals of the First Circuit, it is concluded that the offense for which the respondent was convicted in 1942 involves moral turpitude.
Counsel during oral argument referred to our interpretation of a Wisconsin statute dealing with lewd and lascivious cohabitation where it was determined that moral turpitude was not involved ( Matter of McS----, 56131/916, June 9, 1944). Counsel argues that the indictments in the case before us and the cited case are similar in that the lewdness referred to therein consisted merely in the fact that there was open and notorious cohabitation.
Section 351.04, wisconsin statute: "Any man and woman, not being married to each other, who shall lewdly and lasciviously cohabit and associate together, or any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior, every such person shall be punished * * *"
The indictment charges that McS---- and M---- Z---- * * * not being then and there married to each other, unlawfully, wilfully, and maliciously did lewdly and lasciviously cohabit and associate together * * * and were then and there guilty of lewd and lascivious behavior.
We have reviewed our opinion in Matter of McS---- ( supra). We agree with counsel that both the indictment and the statute are similar. However, there is a basic difference in the two cases. The issue in the McS---- case ( supra) of whether the crime of lewd and lascivious cohabitation involves moral turpitude was concerned with the grant of discretionary relief. In determining whether or not discretionary relief is warranted, inquiry may be had into the facts and circumstances surrounding the commission of the crime ( Matter of G----, 56040/547, 1, I. N. Dec. 8, Nov. 22, 1940). But here the issue of moral turpitude is concerned with whether the alien involved is deportable. Under these circumstances, we may not go behind the record of conviction ( U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757).
Furthermore, in the McS---- case ( supra), since we were not concerned with a deportation or exclusion charge, we were not obligated to consider the rule laid down by the Circuit Court of Appeals, First Circuit, in the case of Lane ex rel. Cronin v. Tillinghast ( supra). The Cronin case concerned an alien who had been found subject to deportation on the criminal charge that within 5 years of entry he had been sentenced to imprisonment for a term of 1 year or more because of conviction in this country of a crime involving moral turpitude committed within 5 years of entry, to wit: lewdness, as defined by Massachusetts statute ( supra). Our observation in the McS---- case that the Wisconsin statute did not involve moral turpitude is dicta for the reason that the alien there was not deportable on a criminal charge. The discussion all centered around the issue of relief and not the issue of deportability.
Counsel also urges in his brief that the respondent's plea of non vult contendere to both counts of the indictment does not necessarily warrant a conclusion that there was a conviction on the first count. We find counsel's position untenable. The second count charges the commission of a single act of fornication and is punishable by a fine not exceeding $50 or imprisonment not exceeding 6 months or both (title 2, ch. 133, sec. 1, N.J. statutes). However, the respondent was sentenced for a maximum term of 2 years and a minimum term of 1 year. This would not have been possible if the respondent had been convicted only on the second count charging a single act of fornication. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.