2848210.
Decided by Board December 2, 1949
Pardon — Construction to determine what offenses the pardon covered — Effect of pardon as to offense on which deportation based.
1. Where the Governor of Rhode Island recommended a pardon to the Senate of that State so that the alien could become naturalized, failing which pardon the alien would be subject to immediate deportation, and the Senate's consent referred to but only one offense at first, but later clearly consented to two offenses (though an inaccuracy appeared therein), it may be concluded that the pardon instrument issued by the Governor covered both offenses, the later act of the Senate being considered merely as a clarification of its prior resolution.
2. Under such circumstances, effect should be given to the pardon as covering both offenses as concluded by the Attorney General of the State of Rhode Island.
3. The provisions of section 19 of the act of 1917 as to deportation of an alien convicted of a crime involving moral turpitude committed within five years after entering the United States, do not apply where the alien has been pardoned for such crime.
CHARGE:
Warrant: Act of 1917 — Sentenced subsequent to May 1, 1917, to 1 year or more because of conviction of crime involving moral turpitude committed within 5 years after entry, to wit: Assault with intent to murder.
BEFORE THE BOARD
Discussion: The attorneys herein by motion move that the order of January 22, 1946, entered by this Board, be reconsidered and proceedings canceled pursuant to section 19, Immigration Act of 1917, as amended, on the ground that the executive pardon granted the alien removes the grounds of deportation upon which proceedings were initially predicated.
We may reiterate the facts briefly. They establish that respondent, a native and citizen of Italy, now 47 years of age, was admitted to the United States for permanent residence on March 20, 1920. Two indictments, Nos. 12880 and 12881, were returned against the alien, and the woman who is now his wife, on March 3, 1924, charging assault with intent to kill with a revolver on two brothers. They pleaded nolo contendere. On indictment No. 12281, respondent was sentenced to 5 years in prison. The sentence on the other indictment, No. 12280, was deferred. Sometime during 1937, or shortly thereafter, he was sentenced to 7½ years in prison on indictment 12280, with respect to which sentence had been initially deferred.
In the memorandum of June 8, 1944, the following factual recital appears:
"The crime for which this alien was convicted and with which his wife was also charged was not without provocation. It appears that R---- M----, who is now the alien's wife, was invited by V---- G---- to go with him on an automobile ride. The latter gave the girl some chewing gum on which he had placed "Spanish fly" to arouse her sexual passions, and that he then criminally assaulted her. Her mouth was badly blistered from the effects of the drug. She informed her future husband of the dastardly act, and they both decided to take the law into their own hands rather than the victim prosecute her attacker."
The sentence as to the woman was deferred as to both indictments.
This action appears to have come about as a result of alien's arrest on December 31, 1937, when he was charged with assault with intent to murder. He has never been tried on this 1937 charge.
In our order of June 8, 1944, on the facts then before us, we concluded that the pardon issued May 3, 1943, did not appear to cover both of the assaults committed in 1924.
The question presented is whether the alien has been pardoned of the offenses which constitute the basis for deportation.
See our orders dated June 8, 1944, p. 2, last paragraph, and July 13, 1943, p. 1, par. 2, referring to pardon issued by the Governor on May 3, 1943.
Since 1854 the Governor of Rhode Island, by and with the advice and consent of the Senate, has possessed the exclusive power to pardon all offenses except cases of impeachment. Rhode Island Constitutional Amendment, art. II. Prior to 1854, the Governor could reprieve and the general assembly could pardon. See the Attorney General's Survey of Release Procedures, vol. I, Digest of Federal and State Laws on Release Procedures, 1939.
Section 19, Immigration Act of February 5, 1917, provides pertinent hereto:
* * * except as hereinafter provided, any alien who is hereafter (May 1, 1917) 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 after entering the United States * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * * The provisions of this section respecting deportation of aliens convicted of a crime in volving moral turpitude shall not apply to one who has been pardoned * * * [Italics added.]
On April 16, 1943, the General Assembly, State of Rhode Island, passed the following resolution:
Upon the pardon of A---- D---- G----,
Resolved: That the Senate hereby gives its advice and consent to the issuing of a pardon to A---- D---- G----, now on parole after having served partially a 7½-year sentence at the State prison for assault with intent to murder, in accordance with the recommendation of His Excellency the Governor.
We indicated that there was some question as to whether the pardon covered both offenses. Another resolution was adopted by the Senate of the State of Rhode Island, at the January 1945 session of the general assembly, providing as follows:
SENATE RESOLUTION
To amend Resolution No. 28, of the acts and resolves, 1943, passed in the senate, April 16, 1943, being a senate resolution, entitled "Senate resolution upon the pardon of A---- D---- G----.
Resolved, That Resolution No. 28 of the acts and resolves, 1943, passed in the senate, April 16, 1943, entitled "Senate resolution upon the pardon of A---- D---- G----," is hereby amended to read as follows:
" Resolved, That the senate hereby gives its advice and consent to the issuing of a pardon to A---- D---- G----, who has served partially a 7½-year sentence at the State prison for assault with intent to murder and also by reason of being indicted by indictment 12.280 in the City of Providence, in accordance with the recommendation of His Excellency, the Governor. [Italics added.]
It is axiomatic that a pardon is an act of grace and mercy. Inherent in the pardoning power is the right to make the pardon absolute or conditional ( U.S. v. Wilson, 32 U.S. (7 Pet.) 150 (1833)). The intention of the executive to grant a pardon can have no legal effect until carried into the completed act ( Commonwealth v. Holloway, 44 Pa. 210 (1863). See U.S. ex rel. Forino v. Garfinckel (C.C.A. Pa. 1948, 166 Fed. (2d) 887; Cf., Matter of R----, 56011/882 (Oct. 8, 1942)).
The intention of the executive in the present case appears clear by his statement in the pardon instrument that he requested the advice and consent of the Senate thereto "to the end that the aforesaid A---- D---- G---- may become a naturalized citizen of the United States; failing which he is subject to immediate deportation (see par. 2, p. 2, opinion of the Attorney General of the State of Rhode Island, rendered July 1, 1947).
The 1943 resolution of the Rhode Island Senate consented to the pardon granted to A---- D---- G---- "now on parole after having served partially a 7 1/2-year sentence at the State prison for assault with intent to murder, in accordance with the recommendation of His Excellency, the Governor." The 1945 resolution simply clarified the 1943 resolution, if clarification were needed, by this language:
Resolved, That the Senate hereby gives its advice and consent to the issuing of a pardon to A---- D---- G---- who has served partially a 7½-year sentence at the State prison for assault with intent to murder, and also by reason of being indicted by Indictment No. 12280 in the city of Providence, in accordance with the recommendation of His Excellency, the Governor.
A resolution by Congress is considered according to the rules applicable to legislation in general ( Ann Arbor, R. Co. v. U.S., 281 U.S. 658). A fortiori a State legislature may act by resolution and may qualify one resolution by a subsequent one (59 C.J. 543, secs. 36, 38).
Substance and not form controls in determining the construction of an act ( Pollock v. Farmers Loan and Trust Company, 157 U.S. 429). A statute must be judged by its full and reasonable effect ( Hammel v. Dagenhart, 247 U.S. 261; Ludwig v. Western Union Telegraph Company, 216 U.S. 147). Legislation cannot be judged by theoretical standards but must be tested by the concrete conditions which induced it ( Mutual Loan Company v. Martell, 222 U.S. 225). Subsequent legislation must be considered as an aid to the interpretation of prior legislation upon the same subject ( Tiger v. Western Investment Company, 221 U.S. 286). A statute is not rendered void by misnaming, if enough is included to identify the subject intended ( Moultrie County v. Fairfield, 105 U.S. 370). And the construction of a particular act must be made in accordance with previous legislation on the subject ( Corraletos Company v. U.S., 178 U.S. 280).
These cardinal principles of statutory construction come into play where the language of a particular statute is vague, ambiguous, or uncertain. They are utilized in such cases with a view to ascertaining the intent of a particular act, and the language, subject matter, the object to be accomplished, may be examined to effectuate the intent and purpose for which the act came into being. The reason which justifies a departure from the strict rules of construction is to avoid an absurd, unjust, or capricious result not intended and thus defeat the real purpose intended of an act or statute ( U.S. v. Katz, 271 U.S. 334; Crooks v. Harrelson, 282 U.S. 55; U.S. v. Bato Post Company, 268 U.S. 388). Thus, apparent inaccuracies and mistakes in the mere verbiage or phraseology will be overlooked to give effect to the spirit and real purpose of the law ( Kirby v. U.S., 7 Wall. 482; Duncinger v. Cooley, 248 U.S. 219; Boston Sand Company v. U.S., 278 U.S. 41).
To argue that the 1945 resolution was a negative act finds no support in fact or law. It clearly referred to two separate offenses (the two offenses which occurred at the same time) and the fact that a mere inaccuracy appears does not change the clear intent expressed. The resolution merely clarified the purpose intended by the 1943 resolution and the grant of pardon issued by the Governor. Thus, whether a determination is made on the basis of the 1943 or 1945 resolution renders the pardon instrument issued by the Governor nonetheless effective to cover both offenses.
The opinion rendered by the Attorney General of the State of Rhode Island on July 1, 1947, not previously before us, clearly interprets the pardon and 1943 resolution as covering both offenses.
We feel, therefore, that effect should be given to the pardon as covering both offenses as concluded by the Attorney General of the State of Rhode Island (59 C.J. 1027, note 44 (b); see also Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938)).
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn, the delivery bond canceled, and the proceedings terminated.