Tillinghast v. Edmead ( 1929 )

BINGHAM, Circuit Judge.

This is an appeal from a decree of the District Court for Massachusetts granting the petition of the appellee for a writ of habeas corpus and ordering her discharged from the custody of the Commissioner of Immigration at Boston, by whom she was held for deportation.

The appellee, Phyllis Edmead, is a woman 23 years of age, bom in the British West Indies. She arrived in this country on or about the 22d of April, 1924, and was lawfully admitted. She engaged in domestic service, and, while so employed by one Annie I. Dale, was, on the fifth day of March, 1927, arrested on a warrant, issuing out of the municipal court of the Roxbury district, charged with the larceny of “certain moneys of the amount and of the value of fifteen (15) dollars.” Thereafter, on the 7th day of March, 1927, she pleaded guilty to the charge and was sentenced to be committed to the Reformatory for Women at Framingham. From this sentence she appealed to the superior court for the county of Suffolk. On April 11, 1927, she was sentenced in that court for the above-named offense to confinement in the county jail for the term of one year. September 18, 1927, an application for a warrant of arrest under section 19 of the Aet of February 5,1917; 8 USCA § 155, was made to the Department of Labor, and, on September 27, 1927, a warrant of arrest was issued wherein it was charged that the appellee had been found in the United States in violation of the Immigration Act of February 5,1917 (39 Stat. 874), for the following reason:

“That she had been sentenced, subsequent to May 1, 1917, to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, to wit, larceny, committed within 5 years after her entry into the United States at Boston, Massachusetts, about April 23, 1924.”

November 9, 1927, she was taken into custody under the Warrant and accorded a hearing before an immigration inspector at Boston. A report of the hearing was made to the Department of Labor sustaining the allegations of the warrant; and the Assistant Secretary of Labor, 'after inspection of the report, being satisfied that the appellee had been found in the United States in violation of the Immigration Aet of February 5,1917, on November 22, 1927, issued a warrant of deportation ordering the appellee to be returned to the country from whence she came. Thereafter the appellee filed this petition for a writ of habeas corpus and, the ease having been heard, the court on June 11, 1928, ordered the writ to issue and that the petitioner be discharged. This appeal was taken therefrom.

The District Court took jurisdiction on the ground that the immigration tribunals proceeded upon a fundamental error of law in that they ruled that one convicted of the crime of larceny was as a matter of law convicted of a crime involving moral turpitude. It held that while some crimes are of such character as necessarily to involve moral turpitude, others might or might not; that as to the latter class it was a question of fact to be determined by the circumstances; that, while there was authority that all larceny involved moral turpitude it was of the opinion that petit larceny did not necessarily, and that the circumstances must be inquired into to determine whether moral turpitude was shown.

The provisions of law under which, the proceeding was had and the deportation ordered are found in section 19 of the Act of February 5, 1917 (39 Stat. 889 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289% j j]), the portions of which here material read as follows:

“Sec. 19. That at any time within five years after entry, * * * except as hereinafter provided, any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry, * * * any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude, * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * Provided further, that the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act. * * * In every case where any person is ordered deported from the United States under the provisions of this act, or of any law or treaty, the decision of the Secretary of Labor shall be final.”

There is no evidence or finding in the case that the alien, Edmead, has been pardoned for the crime in question, or that the court or judge sentencing her for such crime, at the time of imposing judgment or passing sentence or within 30 days thereafter, made recommendation to the Secretary of Labor that the alien should not be deported in pursuance of the act.

Gen. Laws Mass. c. 266, § 30, provides:

“Whoever steals, * * * the money or personal chattel of another, * * * shall be guilty of larceny, and shall, if the value of the property stolen exceeds one hundred dollars, be punished by imprisonment in the state prison for not more than five years or by a fine of not more than six hundred dollars and imprisonment in jail for not more than two years, or if the value of the property stolen does not exceed one hundred dollars, shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars.”

Stealing is defined as “the criminal taking, obtaining or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it. * * *” Gen. Laws Mass. c. 277, § 39.

“A crime punishable by death or imprisonment in the State prison is a felony. All other crimes are misdemeanors.” Gen. Laws Mass. c. 274, § 1.

As the crime of which the alien was convicted in the state court was the larceny of money of a value less than $100, the crime of which she was convicted was petit larceny and a misdemeanor within the meaning of the above provisions of law, and the jurisdiction of the District Court depends upon whether a conviction of petit larceny, a misdemeanor, is in law the conviction of a crime involving moral turpitude. If it is, the District Court was without jurisdiction.

Blackstone in his Commentaries, book 1, pp. 54r-58, says:

“Neither do divine or natural duties receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, .theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior Legislature. Por that. Legislature in all these eases acts only * * * in subordination to the Great Lawgiver, transcribing and publishing His precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.” That with “regard to natural duties, and such offenses as are mala in se; here we are bound in conscience; because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other.”

Prom this it appears that theft or larceny was a crime at common law involving an act intrinsically and morally wrong and malum in se, and does not acquire addititonal turpitude from being declared unlawful by the municipal law. In other words, that an act that was at common law intrinsically and morally wrong, malum in se, does not become any more or any less so by reason' of the fact that the Legislature may see fit to call it a felony, if the thing stolen is of a value exceeding a given amount, or to call it a misdemeanor, if the thing stolen is of less value. In either case the offense is one involving moral turpitude.

In Bartos v. United States, 19 F.(2d) 722, 724, the Circuit Court of Appeals for the Eighth Circuit, in discussing this matter, said: “A thief is a debased man; he has no moral character. The fact that a statute may classify his acts as grand and petit larceny, and not punish the latter with imprisonment and declare it to be only a misdemeanor, does not destroy the faet that theft, whether it be grand or petit larceny, involves moral turpitude. It is malum in se, and so the consensus of opinion — statute or no statute — deduces from the commission of crimes mala in se the conclusion that the perpetrator is depraved in mind and is without moral character, because, forsooth, his very act involves moral turpitude.”

In Redway v. Gray, 31 Vt. 292, 298, the court said:

“The true reason why assaults, and breaches of the peace, and violations of the liquor law are not such offenses as make words charging them actionable, is, because they do not necessarily and in a legal sense imply moral turpitude. The offense of larceny does necessarily imply it, and there is no distinction between grand and petty larceny in this respeet.” See, also, In re A. M. Henry. 15 Idaho, 755, 99 P. 1054, 21 L. R. A. (N. S.) 207; Coykendall v. Skrmetta (C. C. A.) 22 F.(2d) 120; Matter of Gannett, 11 Utah, 283, 39 P. 496, 497; 16 Corpus Juris, § 8; 12 Cyc. 131, 132.

The record of conviction in the state court was, in this proceeding under section 19, conclusive evidence of a conviction of the crime therein charged; the other evidence relating to the crime committed was improperly received and considered. United States v. Williams (D. C.) 203 F. 155, 156; Howes v. Tozer (C. C. A.) 3 F.(2d) 849.

The decree of the District Court is vacated, and the case is remanded to that court, with directions to dismiss the petition and discharge the writ.