He was sentenced to 1 to 3 years on May 4, 1940; he was confined to the Ohio State Prison until August 3, 1942.

On February 7, 1948, respondent was charged with violating section 10-2105 of the Indiana statutes (entitled, "Fraudulent Checks”) and he pleaded guilty in Wayne County Circuit Court, Indiana. In April 1948, respondent was sentenced to 1 to 10 years, serving nearly a year at Indiana State Prison.

Ohio and Indiana, like several other states,1 have "cold check" statutes which are similarly worded, having been copied from the same model. The statutes in question read as follows:

Section 710-176 (Page's Ohio General Code, 1937):

Drawing check, draft, etc., without credit; penalty.—Any person, who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money upon any bank or other depository, who, at the time thereof, has insufficient funds or credit with such bank or depository, shall be guilty of a felony, and upon conviction thereof shall be fined not less than fifty dollars and not more than two hundred dollars, or imprisoned in the Ohio State Penitentiary for not less than one year nor more than three years or both.

Prima facie evidence of intent to defraud.—As against the maker or drawer thereof, the making, drawing, uttering, or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository. The word "credit" as used herein shall be construed to mean any contract or agreement with the bank or depository for the payment of such check, draft, or order, when presented.

Section 10-2105 (Burns' Indiana Statutes, 1933):

Fraudulent checks—Act of 1927.—Whoever with intent to defraud by obtaining money, merchandise, property, credit, or thing of value, although no express representation is made in reference thereto, or who, in the payment of any obligation, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in or credit with such bank, despository, person, firm, or corporation, for the payment of such check, draft, or order in full upon its presentation, shall, on conviction, be imprisoned in the State prison

1

1 Parallel statutes exist in the following jurisdictions:

Kentucky Baldwin's Rev. Statutes, 1942, sec. 434.070; Commonwealth v. Bandy, 291 Ky. 721, 165 S. W. (2d) 337; King v. Commonwealth, 203 Ky. 163, 261 S. W. 1096 (1924); Commonwealth v. Hammock, 198 Ky. 785, 250 S. W. 85 (1923).

Massachusetts: General Laws, 1933, ch. 266, sec. 37; Fuller v. Home Indemnity Co., 318 Mass. 37, 60 N. E. (2d) 1 (1945).

Michigan: Annotated Statutes, 1935, sec. 28.326, 28.327, 28.328; People v. Smith, 271 Mich. 553, 260 N. W. 911 (1935).

New York: McKinney's Consolidated Laws, 1944, sec. 1292a; People v. Weiss, 263 N. Y. 537 (1933); People v. Olans, 264 N. Y. 420 (1934).

West Virginia: Annotated Code, 1949, sec. 5980; State v. McGinnis, 116 W. Va. 473, 181 S. E. 820 (1935).

for not less than one (1) nor more than ten (10) years: Provided, however, That when the money, merchandise, property, or thing of value obtained is less than twenty-five dollars ($25.00), the punishment shall be the same as the punishment prescribed by law for petit larceny. The making, drawing, uttering, or delivering of such check or draft or order as aforesaid shall be prima facie evidence of intent to defraud. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank, depository, firm, or corporation, for the payment of such check, draft, or order (acts 1927, ch. 201, sec. 6, p. 576).

The offense defined in the "cold check" statutes belongs in general to the family of criminal false pretenses and is a species of fraud by false pretenses. Huffman v. State, 205 Ind. 75, 185 N. E. 131 (1933); Hughes v. Commonwealth, 232 Ky. 232, 22 S. W. (2d) 618 (1929). The gist of the offense in both statutes lies in the fraudulent intent and knowledge. Union Gas & Electric Co. v. Coffman, 36 Ohio Law Rept. 201, 1931; Koenig v. State, 121 Ohio State Rept. 147 (1929); State v. Vice, 33 Ohio opinions 544 (1946).

The statute creates a rebuttable statutory presumption of guilt, based on prima facie evidence of intent to defraud. However, proof of intent to defraud, according to judicial construction, is an essential of the crime and a conviction for this offense. People v. Will, 289 N. Y. 413, 46 N. E. (2d) 498 (1943); People v. Ledwell, 14 N. Y. S. (2d) 371 (1939); Union Gas & Electric Co. v. Coffman, (supra.)

Therefore, since the gravamen of the offense has repeatedly been held to be the intent to defraud 2 and moral turpitude inheres in such criminal intent,3 we conclude that convictions under section 710–176, Ohio General Code, and section 10-2105, Indiana statutes, were both convictions for crimes involving moral turpitude. People v. Will (supra); Seaboard Oil Co. v. Cunningham, 51 F. (2d) 321 (C. C. A. 5, 1931). The charge under section 19, act of 1917, of having been sentenced more than once to imprisonment for periods of 1 year or more as a result of convictions for crimes involving moral turpitude after entry, is accordingly sustained.

When the warrant hearing was held in the present case on April 27, 1950, respondent was confined to the Indiana State Farm, Greencastle, Ind., serving a sentence for another "cold check" violation which occurred, according to respondent's testimony in Vanderburgh County, Evansville, Ind., and for which he received a 6-month sentence plus a fine of $25 and court costs.

2 Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1929); State v. McGinnis, 116 W. Va. 473, 181 S. E. 820 (1935); Caldwell v. Commonwealth, 221 Ky. 232, 298 S. W. 681 (1927).

3 U. S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W. D. N. Y. 1929); U. S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C. C. A. 2, 1931); U. S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E. D. Pa., 1930).

Respondent was released to Nashville, Tenn., police authorities on April 30, 1950, for prosecution there for similar offenses in connection with his passing three worthless checks, totaling $800, in 1949.

In passing, we wish to comment on the applicability to the instant case of U. S. ex rel. Portada v. Day, 16 F. (2d) 328, S. D. N. Y. (1926), cited by the hearing examiner in his recommended decision. The Portada case is not controlling here, for the California "cold check" statute in issue at that time differed materially from the Ohio and Indiana statutes now under consideration. Since the word "wilfully" was specifically used in the California statute, there was no room for judicial interpretation regarding the necessity of an intent to defraud as an element of the crime; a fraudulent intent was an indispensable element of the crime, according to the plain wording of the statute. On the other hand, the word "wilfully" is conspicuously missing from the Ohio and Indiana statutes now before us, leaving the courts free to determine judicially, as they have done, that an intent to defraud is an essential element of the crime.

For these reasons, the appeal is dismissed.

Order: It is hereby ordered that the appeal be dismissed.

IN THE MATTER OF O

In EXCLUSION Proceedings

A-7463281, A-7463282, and A-7463283

Decided by Central Office March 15, 1951

Decided by Board December 19, 1951

Crime involving moral turpitude-Foreign-Germany-Riot accompanied by assault of an official-Assault of official in the lawful exercise of his office. (1) The crime of participation in riot in violation of section 115 of the German Criminal Code, accompanied by an assault of an official in the lawful exercise of his office in violation of section 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense.

EXCLUDED:

Act of 1917-Convicted of crime involving moral turpitude, to wit:
Rioting (principal applicant).

Act of 1924-Not preference quota immigrants as specified in visas
(accompanying applicants).

BEFORE THE CENTRAL OFFICE

(March 15, 1951)

Discussion: The applicants comprise a family group consisting of the principal applicant, aged 26, a native of the Ukraine, his wife, aged 20, a native of Germany; and their child, aged 16 months, a native of Germany; all citizens of the Union of Soviet Socialist Republics. They seek admission as displaced persons under the provisions of the Displaced Persons Act of 1948, as amended. A Board of Special Inquiry found the applicants inadmissible on the grounds shown in the caption and they have appealed.

The principal applicant's inadmissibility is predicated upon his conviction by a Summary Military Court at Augsburg, Germany, on March 28, 1947, of the crime of rioting, for which he received a sentence of 60 days. The pertinent portion of the Extract of Court Record reads as follows:

1st-Violation of Military Government Ord. I, article II, section 43, and the German Penal Code 360.8 (refusing to give information to a competent official). In that A 0—, Ukrainian, did at Augsburg, on 18 March 1947 refuse to give information to a competent official concerning his identity, to wit: The

accused refused to give information to a German policeman concerning his identity and to show his identification papers.

2d-Violation of Military Government Ord. I, article II, section 43, and German Penal Code 115, section 2 (taking part in a public riotous gathering and assaulting a German policeman in the lawful exercise of his office).

In that A- O—, Ukrainian, did at Augsburg, on 18 March 1947 take part in a public riotous gathering and use force and threats against a German policeman in the lawful exercise of his office, to wit: On 18 March 1947.

As will be noted, only the second charge was used as the basis for the finding of inadmissibility. Section 115 of the Statutory Criminal Law of Germany provides:

Whoever takes part in a public riotous gathering at which one of the offenses mentioned in sections 113 and 114 is committed by the gathering shall be punished for riot by imprisonment for not less than 6 months.

The ringleaders as well as those rioters who have committed one of the offenses specified in sections 113 and 114 shall be punished by confinement in a penitentiary not to exceed ten years; police surveillance may also be ordered. If there are extenuating circumstances, imprisonment for not less than 6 months may be imposed.

In deciding the issue presently before us for consideration it is important to note that the male appellant was not charged with and has not been convicted of assaulting an official engaged in the lawful exercise of his office, a separate and distinct offense under section 113 of the German law. This appellant stands convicted only of taking part in a public riotous gathering at which he assaulted a German policeman while that official was engaged in the lawful exercise of his office, an offense under section 115 of the German law. It is equally important to note that this appellant was not convicted of an offense of simple riot alone or of unlawful assembly since such offense falls not within section 115 but within section 116 of the German law. There is no offense under section 115 unless and until an offense mentioned in section 113 or 114 is committed during the riot. The description of the offense in the Extract of Court Record establishes that only section 113 is applicable here with regard to the offense under section 115. The pertinent part of that section states:

Whoever, with force or threats of force, resists an official (Beamte) whose duty is to execute the laws, orders, and decrees of administrative authorities, or the judgmments and orders of the courts while such official is engaged in the lawful exercise of his office, or whoever assaults such official while he is engaged in the lawful exercise of his office, shall be punished by imprisonment from 14 days to 2 years.

Accordingly, while we are not called upon at this time to determine whether on the facts here presented an offense under section 113 would involve moral turpitude, it is believed that should such offense involve moral turpitude, it will be a factor to be considered in determining whether the offense of which this appellant was convicted is one involving moral turpitude.