A-5547249
Decided by the Board February 2, 1954
Crime involving moral turpitude — Assault, second degree, Washington — Entry.
(1) A conviction of assault, second degree, with a .38-caliber revolver (sec. 2414 (4) Remington's Revised Statutes of Washington 1932) is a conviction of a crime involving moral turpitude.
(2) A Filipino convicted of such crime in 1952 who last entered the United States as a returning resident in 1949, or after the effective date of the Philippine Independence Act on July 4, 1946, made an entry as an alien at that time and was sentenced to imprisonment for a crime committed within 5 years of entry.
CHARGE:
Warrant: Act of 1917 — Crime within 5 years — Assault in the second degree.
BEFORE THE BOARD
Discussion: This case is before us on certification of the special inquiry officer dated January 29, 1953, ordering termination of the deportation proceeding. Respondent, a 43-year-old native and citizen of the Philippine Islands, entered the United States for permanent residence on May 6, 1929, at Seattle, Wash. His last entry occurred on July 26, 1949, at Portland, Oreg., when he was admitted as a returning legal resident.
On September 9, 1952, respondent was convicted on a plea of guilty in the Superior Court, King County, Wash., of assault, second degree. According to the information, on April 20, 1952, respondent "willfully and unlawfully did make an assault on a human being, with a weapon or thing likely to produce bodily harm, to wit: a .38-caliber revolver." Respondent was sentenced to a maximum of 10 years' imprisonment and is presently confined at the Washington State Penitentiary, Walla Walla, Wash. On the basis of this conviction, a warrant of deportation was issued charging that respondent had been sentenced to imprisonment for one year or more as a result of a conviction in this country for a crime involving moral turpitude, committed within 5 years after entry (sec. 19 (a), act of 1917).
The pertinent provision of Remington's Revised Statutes of Washington, 1932, reads as follows:
SEC. 2414. Assault in the second degree. Every person who, under circumstances not amounting to assault in the first degree —
(1) With intent to injure, shall unlawfully administer to or cause to be 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, shall administer to, or cause to be taken by another chloroform, ether, laudanum or any other intoxicating narcotic or anesthetic; or
(3) Shall willfully inflict grievious bodily harm upon another with or without a weapon; or
(4) Shall willfully assault another with a weapon or other instrument or thing likely to produce bodily harm; or
(5) Being armed with a deadly weapon shall willfully assault another with a whip; or
(6) Shall assault another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court officer, or the lawful apprehension or detention of himself or another person; or
(7) While hunting any game or other animals or birds, shall shoot another;
Shall be guilty of assault in the second degree and be punished by imprisonment in the State penitentiary for not more than 10 years or by a fine of not more than $1,000, or by both (L. 1909, p. 936, sec. 162).
Because section 2414 is a statute with separable subsections, it is possible to determine the subsection under which the conviction occurred and the moral turpitude question can then be settled. After reading the statute and the conviction record together, it is quite clear that respondent's 1952 conviction occurred under subsection (4).
In Matter of Z----, A-1817228, Int. Dec. No. 475 (B.I.A., August 5, 1953), the crime of assault, second degree in New York, similar in wording to the Washington statute under consideration, was considered. According to the indictment in the Z---- case, the alien "with force and arms * * * did make an assault on another person with a knife;" with this knife, a weapon likely to produce grievous bodily harm, he "feloniously, willfully, and unlawfully did strike, stab, beat, cut, bruise, wound and contuse" the other person. The Board said in that case:
Sec. 242 (4) of the New York Penal Law provides:
"A person who, under circumstances not amounting to the crimes specified in section 240 * * *
"(4) Willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm * * * is guilty of assault in the second degree."
It has been held by the New York Court of Appeals that both subsections (3) and (4) of section 242 require a specific criminal intent to inflict bodily injury, coexistent with the acts involved. People v. Katz, 290 N.Y. 361, 49 N.E. 2d 482 (1943); see also, People v. Osinski, 281 N.Y. 129, 22 N.E. 2d 311 (1939). According to the record in the instant case, respondent's conviction occurred under section 242 (4) and, hence, involved an evil intent. Therefore, because moral turpitude arises from a criminal intent, the offense defined in section 242 (4) clearly involves moral turpitude.
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"In United States ex rel. Ciccerelli v. Curran, 12 F. (2d) 394 (C.C.A. 2, 1926), the court stated that `it seems to be admitted that the crime of assault in the second degree (in New York) is one involving moral turpitude.' Although the real question involved in United States ex rel. Morlacci v. Smith, 8 F. (2d) 663 (W.D.N.Y., 1925), was the construction of the word "sentence," the court stated by implication that assault in the second degree with dangerous weapon (revolver) was in fact a crime involving moral turpitude and sustained the deportation charge. In United States ex rel. Pellegrino v. Karnuth, 23 F. Supp. 688 (W.D.N.Y., 1938), the court concluded that the wounding of a person through the firing of a shotgun constituted a crime involving moral turpitude, although it was not clearly established whether the offense was assault in the first degree or assault in the second degree. To the same effect, Matter of P----, 56031/543 (B.I.A., October 24, 1942).
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In United States ex rel. Ciarello v. Reimer, 32 F. Supp. 797 (S.D.N.Y., 1940), section 242 (3), (4) are discussed, although the conviction in issue actually occurred in Italy with a vaguely reasoned analogy being made to the provisions of section 242."
The special inquiry officer mentions United States ex rel. Zaffarano v. Corsi, which was discussed in Matter of Z---- ( supra) as follows:
"Although the conviction in United States ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C.C.A. 2, 1933) arose under section 242 (5), information was lacking about the specific charge involved in the conviction and the court made no definite ruling on the moral turpitude question."
While section 10098, Mason's Minnesota Statutes, 1927, is almost identical with section 241 (1), (2), (3), (4), and (6) of Rem. Rev. Stats. of Washington, the alien's conviction in Matter of B----, 56018/361, 1 IN Dec. 52 (Atty. Gen., 1941) occurred under subsection (3) which parallels section 2414 (3). Although the crime was held not to involve moral turpitude in the Matter of B----, as in the instant case, the offense involved was not identical; the record was silent regarding the weapon used, while we note in the present case that the weapon was known to be a .38-caliber revolver. Consequently, we feel that this case is not controlling in the instant situation.
The special inquiry officer found that the Washington courts have held that because no particular intent to inflict bodily injury is required, the offense does not involve moral turpitude. The phrase "particular intent" was used in State v. Copeland, 66 Wash. 243, 119 Pac. 607 (1911), but this phrase referred specifically to the intent to kill which is required for assault, first degree in section 2413. The Washington courts have been primarily preoccupied with determining whether the factual and legal requirements of the crime of assault, second degree were present in the decisions cited by the special inquiry officer.
Howell v. Winters, 58 Wash. 436, 108 Pac. 1077 (1910) is chiefly concerned with the correctness of the charge to the jury and whether the verdict was excessive. With regard to a definition of the offense of assault, not found in the statutes, the court relied on the common law and defined the crime as an attempt with unlawful force to inflict bodily injuries on another, accompanied with apparent ability to give effect to the attempt, if not prevented. This definition is cited in State v. Shaffer, 120 Wash. 345, 207 Pac. 229 (1922); Peasley v. Puget Sound Tug and Barge Co., 13 Wash. 2d 504, 125 P. 2d 681 (1942); State v. Rush, 14 Wash. 2d 138, 127 P. 2d 411 (1942); and State v. Rush, 32 Wash. 2d, 278, 201 P. 2d 513 (1949).
In State v. Copeland ( supra), the court determined that the assault with a shotgun in that instance occurred without legal justification and not in self defense. The court also held that, while Copeland was charged with first degree assault but convicted of second degree assault, the former charge included the latter and the conviction was proper.
In State v. Shaffer ( supra), a sheriff attempted to search Shaffer's house, but Shaffer was unwilling and held the sheriff at bay with a gun, committing assault, second degree. On the other hand Peasley v. Puget Sound Tug and Barge Co. ( supra), arose as a malicious prosecution action and is primarily concerned with possible defenses to the charge, such as justifiable cause, the amount of force justified by circumstances, etc. The court actually bypasses the question of whether the crime of assault, second degree existed in this instance, in order to reach and determine another legal question.
However, in regard to whether a specific evil intent tantamount to moral turpitude was present in a given case, we feel that State v. Shaffer is helpful. In that case, the court found that the element of willfulness under section 2414 meant an intentional act which complied with the other statutory requirements of the crime of assault, second degree.
Hence, we feel that the Board's reasoning involving a similar California statute is pertinent here. In Matter of G---- R----, A-4569802, 2 IN Dec. 733 (Atty. Gen., 1947), it was shown that although the statute relating to assault with a deadly weapon was amended in 1874 to eliminate the words "with intent to do bodily harm," the California courts continued to read this requirement into the statute. The Board stated in that case:
Applicable provisions of California Penal Code:
SEC. 240. Assault defined. — An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.
SEC. 245. Assault with a deadly weapon; Punishment. Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison not exceeding 10 years, or in a county jail not exceeding 1 year, or by fine and imprisonment.
An assault with a deadly weapon is "an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another" "with a deadly weapon." The crime constituting an attempt to do an injury necessarily includes the intent to do an injury since an attempt to commit a crime always includes the intent.
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The new version is more concise, and the two alternated attendant circumstances are objective, i.e., the assault was committed with a deadly weapon or instrument, or it was committed by means of force likely to produce great bodily injury. We are convinced, however, that the offense described in the later statute is no less serious.
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While the punishment provided is not always a guide as to whether a crime involves moral turpitude, it is certainly an indication of the seriousness with which the California legislature regarded the two offenses.
After studying the California cases on the crime as presently defined we are also convinced that although the former statute specifically prescribed that the act be committed "with intent to do bodily harm" and the later version does not, the crime is still limited to intentional acts and does not include the inflicting of injuries by accident.
We, therefore, feel that a criminal intent to inflict bodily injury is implicit in respondent's act of making an assault on another with a .38-caliber revolver. Matter of G---- R---- ( supra); cf., Weedin v. Yamada, 4 F. (2d) 455 (C.C.A. 9, 1925). Because moral turpitude arises from a criminal intent, the offense defined in section 2414 (4) involves moral turpitude. United States ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W.D.N.Y., 1929); United States ex rel. Meyer v. Day, 54 F. (2d) 336 (C.C.A. 2, 1931); United States ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E.D. Pa., 1930).
The crime of assault with a deadly weapon has been held to involve moral turpitude in the following cases: Matter of R----, 56050/167, 1 IN Dec. 209 (B.I.A., April 8, 1942); Matter of K----, 56138/221 (B.I.A., November 12, 1943); Matter of N----, A-1779952, 2 IN Dec. 201 (B.I.A., September 16, 1944); Matter of B----, A-3748822 (B.I.A., January 5, 1946); Matter of O----, A-5912688, 3 IN Dec. 193 (B.I.A., 1948); Matter of P----, A-6386124, 3 IN Dec. 5 (Atty. Gen., September 11, 1947).
It is noted in passing that the record reveals that respondent twice previously was arrested and imprisoned for assault, second degree, in Washington. As a result, a warrant of arrest in deportation was issued on November 15, 1946, on the same ground as in the present case and in that instance the proceedings were also terminated. In addition, the record shows that respondent was convicted in Sacramento, Calif., of assault, third degree, in 1934 and was sentenced to about 4 months' imprisonment.
Because respondent is a Filipino, consideration of Gonzales v. Barber, 207 F. (2d) 398 (C.A. 9, 1953) and Mangaoang v. Boyd, 205 F. (2d) 553 (C.A. 9, 1953) is appropriate. The instant case may be distinguished from Gonzales v. Barber ( supra) for respondent made a valid "entry" into the United States as an alien in 1949. Conversely, Gonzales only arrival was in 1930, when he was a United States national, and the fact that Gonzales was reduced to alienage on July 4, 1946, did not make his original arrival an alien's entry. This factor, according to the court, kept Gonzales from being deportable as an alien sentenced more than once for criminal convictions after entry (assault with a deadly weapon in California; burglary, second degree in Washington).
Certiorari granted December 4, 1953. (See Barber v. Gonzales, 347 U.S. 637 (1954)).
Certiorari denied November 9, 1953 [ 346 U.S. 876].
The present case also differs from Mangaoang v. Boyd ( supra) because Mangaoang's deportation was sought on the ground that he had been a Communist in 1938 and 1939. However, because his only entry was in 1926 and he was in fact a United States national in 1938, rather than an alien, the charge was held not sustained.
Although respondent was admitted for permanent residence in 1929, he was actually a United States national. However, since respondent again entered in 1949, or after the effective date of the Philippine Independence Act on July 4, 1946, he was an alien on that occasion and made an "entry" within the meaning of the act of 1917. Hence, he was in fact sentenced to imprisonment for a conviction (in 1952) as a result of a crime committed within 5 years of entry (in 1949).
For the foregoing reasons, the warrant charge under section 19 (a) of the act of 1917 is sustained and the decision below is reversed.
Order: It is hereby ordered that the warrant charge be sustained and the alien be deported.