(sec. 19 (a), act of 1917). Respondent contends that the crimes, discussed below, do not serve to sustain the charge.

On May 5, 1938, respondent was convicted in Superior Court, Middlesex County, Mass., on a plea of guilty of attempting to escape from the Massachusetts reformatory in Concord. Respondent was sentenced to Massachusetts State prison for 8 to 10 years at hard labor with 1 day of solitary confinement, the sentence to take effect notwithstanding the sentence he was then serving in the Massachusetts reformatory.

The offense was committed on April 23, 1938. According to the indictment, respondent, in furtherance of an attempt to escape on the part of three prisoners, "did assault and overpower a guard stationed (in the hospital building) and did file and cut a steel bar on a window, but was intercepted and prevented in the execution of the attempted offense."

The offense in question is defined in chapter 268, section 16 of the Annotated Laws of Massachusetts in the following manner:

Penalty for Escapes or Attempted Escapes from Penal Institutions.-A prisoner who escapes or attempts to escape from any penal institution, or from land appurtenant thereto, or from the custody of any officer thereof or while being conveyed to or from any such institution, may be pursued and recaptured and shall be punished by imprisonment in the institution to which he was originally sentenced or committed, for a term not exceeding five years. If the prisoner has escaped or attempted to escape from the institution to which he is sentenced and the expense of committing him shall be paid by the prison camp and hospital. In imposing sentence under this section the court shall observe the provisions of law regarding sentences and commitments to the various penal institutions (1805, 113, 119, 10; 1925, 53).

The statute before us serves to direct the duly constituted State authorities in the pursuit and recapture of prisoners who leave or attempt to leave confinement without permission. "Escape" is not defined in terms of intent and, by wording of the statute, a specific criminal intent is not required.

Since the crime defined in chapter 268, section 16, is merely malum in prohibitum, and because moral turpitude inheres in the evil intent, it is concluded that this offense does not involve moral turpitude, (Commonwealth v. Mixer, 207 Mass. 141, 93 N. E. 249 (1910)).1

On May 5, 1938, respondent was convicted on a plea of guilty in Superior Court, Middlesex County, Mass., of assault and battery with a dangerous weapon. This offense was committed on April 23, 1938, and occurred during the escape attempt discussed above.

'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).

The crime of assault with a dangerous weapon in Massachusetts is defined in chapter 265, section 15A of the Annotated Laws of Massachusetts as follows:

Assault and Battery with Dangerous Weapon.-Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than 10 years or by a fine of not more than $1,000 or imprisonment in jail for not more than 21⁄2 years (1927, 187, 1).

Simple assault has generally been held as not necessarily involving moral turpitude, for it may be committed without the evil intent or depraved motive associated with moral turpitude. For similar reasons, aggravated assault where the use of a deadly or dangerous weapon is not an element is not regarded as involving moral turpitude, (U. S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933); U. S. ex rel. Griffe v. McCandless, 28 F. (2d) 287 (E. D., Pa., 1928); U. S. ex rel. Morlacci v. Smith, 8 F. (2d) 663 (W. D., N. Y., 1925); Ciambelli ex rel. Maranci v. Johnson, 12 F. (2d) 465 (D. Mass., 1926)). Conversely, assaults with intent to murder (Clark v. Orabona, 59 F. (2d) 187 (E. D., Pa., 1930)), to kill (U. S. ex rel. Rizzio v. Kenney, 50 F. (2d) 418 (N. D. Conn., 1931)) have been held to indicate the base motive which is requisite for moral turpitude.

In order for a statutory crime to involve moral turpitude, a specific intent must accompany the act, in addition to the fact that the act. made criminal, must be intrinsically wrong, (Weedin v. Yamada, 4 F. (2d) 455 (C. C. A. 9, 1925); Tillinghast v. Edmead, 31 F. (2d) 81 (C. C. A. 1, 1929) ;Coykendall v. Skrmetta, 22 F. (2d) 120 (C. C. A. 5, 1927)). Assault with a dangerous or deadly weapon has repeatedly been held to be a crime involving moral turpitude, (Matter of R 1, I. & N. Dec. 209 (56050/167, B. I. A. 1942); Matter of KA-3959971 (56138/221, B. I. A., November 12, 1943) (unreported); Matter of N, 2, I. & N. Dec. 201 (56170/750, now A-1779952, B. I. A., 1944); Matter of GR, 2, I. & N. Dec. 733 (A-4569802, A. G., 1947); Matter of P———, A-6386124 (A. G., September 11, 1947) (3, I. & N. Dec. 5); Matter of O—, A-5912688 (B. I. A., March 29, 1948) (3, I. & N. Dec. 193)).

The Massachusetts courts have defined a dangerous weapon as: any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm; or an instrument or instrumentality which, because of the manner in which it is used, or attempted to be used, endangers life or inflicts great bodily harm; or is likely to produce death or serious bodily

In such cases as Matter of R—, 56053/152 (B. I. A., October 13, 1942) (unreported); Matter of E, 1, I. & N. Dec. 505 (56065/307, B. I. A., 1943); and Matter of M- 56156/116 (B. I. A., May 13, 1944) (unreported), the crime in question held not to involve moral turpitude, because the offense was a mere assault not accompanied by aggravated circumstances.

injury. An instrument and instrumentality most innocent appearing and harmless in and of itself may be used in such a dangerous and harmful manner that it causes serious bodily injury because of such manner of use. (Commonwealth v. Farrell, 322 Mass. 606, 78 N. E. (2d) 697 (1948); see also Commonwealth v. Wolansky, 316 Mass. 621, 55 N. E. (2d) 902 (1944).

It would, therefore, seem that, not only in view of the above definition of a dangerous weapon, but also on the basis of the conviction in the superior court of Massachusetts, respondent was sentenced on May 5, 1938, for an offense involving an evil intent, as shown by the use of the above described dangerous weapon-a crime involving moral turpitude, (Matter of N-(supra); Matter of Di S, A-4223116 (November 29, 1949) (unreported).

In passing, it will be noted that the statute and conviction involved in the instant case differ greatly from those passed upon in U. S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933) and Matter of B, 1, I. & N. Dec. 52 (56018/361, A. G., 1941). In the former case, it was not shown that a weapon was in fact used; in the latter case the weapon was stated as unknown and crime was said to have occurred under circumstances of extreme provocation. In addition, it is felt that the reasoning used in several prior cases, involving a conviction for aggravated assault by inflicting bodily injury or asault with intent to commit a minor infraction and held not to be crimes involving moral turpitude, has been repudiated at least by inference in Matter of G- R— (supra); Matter of A—, A-5247648 (July 8, 1947) (Int. Dec. #83); Matter of P— (supra); Matter of 0

(supra).

On January 10, 1946, respondent was convicted in Superior Court, Suffolk County, Mass., on a plea of guilty of armed robbery (five) cases, committed on June 26, 1945, June 30, 1945, and July 24, 1945). He was sentenced to serve concurrent sentences for each offense of 10 to 11 years; he served slightly longer than 5 years' time.

The crime of armed robbery is defined in chapter 277, section 37 and chapter 265, section 17 of the Annotated Laws of Massachusetts as follows:

Section 37. Definition of Robbery.—The taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.

Section 17. Punishment of Robbery in Certain Cases.-Whoever, being armed with a dangerous weapon, assaults another and robs, steals, or takes from bis person money or other property which may be the subject of larceny shall be punished by imprisonment in the state prison for life or for any term of years. (1943, 250, 1, effective Oct. 1, 1943).

In order for a statutory crime to involve moral turpitude, a specific intent must accompany the act, (Weedin v. Yamada, 4 F. (2d) 455 (C. C. A. 9, 1925)). The common-law definition of robbery was incorporated almost literally into the above Massachusetts robbery stat

utes. Since a specific intent is an essential of the crime of robbery, an averment worded in the less technical terminology of "stealing" does in fact supply the specific intent to commit larceny necessary. Cf. Matter of M- A-3035192 (October 7, 1949) (unreported).

Acts which were always malum in se, such as larceny or "stealing," naturally fall within the definition of offenses involving moral turpitude, (Bartos v. U. S. Dist. Ct., 19 F. (2d) 722 (C. C. A. 8, 1927); Ng Sui King v. United States, 46 F. (2d) 755 (C. C. A. 7, 1931)). Hence, since, moral turpitude inheres in such criminal intent, as is required by the words of the statute, we conclude that a conviction for armed robbery under chapter 265, section 19 was a conviction for a crime involving moral turpitude. (See footnote 1.)

Therefore, in view of the interpretation placed on section 19 (a) of the act of 1917 3 by the United States Supreme Court in Fong Haw Ten v. Phelan, 333 U. S. 6 (1948), it is concluded that respondent is deportable as an alien who has been sentenced more than once for crimes involving moral turpitude.

The appeal is accordingly dismissed.

Order: It is ordered that the appeal be dismissed.

Editor's note.-Because the weapon was unknown, the information or violation of sec. 10098, Mason's Minnesota Statutes (1927) was held not necessarily to state a crime involving moral turpitude (1, I. & N. Dec. 52, Assault, 2d degree). But when the dangerous weapon (a knife) appeared in a charge for violation of this Minnesota statute, it was held that the offense charged did state a crime involving moral turpitude. (Unreported Matter of M——, A-1322196, B. I. A. October 3, 1951.) Also, violations of sec. 11056 of the Revised Laws of Hawaii (assault with knife, sword, cane, or any other weapon obviously and imminently dangerous to life) were held offenses involving moral turpitude. (Unreported Matter of M- A-5414879, B. I. A., July 18, 1951).

*“*** except as hereinafter provided, any alien who, after May 1, 1917 is 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 * * * shall, upon the warrant of the Attorney General, be taken into custody and deported * * *.”

IN THE MATTER OF F

In EXCLUSION Proceedings

A-8031634 and A-8031639

Decided by Board October 19, 1951

Subversive-Excludability as participant in movement hostile to United StatesItalian Fascist Party-Section 13, act of June 25, 1948, as amended—“Voluntary" participation—8 C. F. R., appendix, section 702.8 (g)—Excludability as member of totalitarian party of foreign state-Italian Fascist Party-Section 1 (2) (C), act of October 16, 1918, as amended-Burden of proof-Evidence. A member of the Fascist Party in Italy from 1927 to 1943 who testified that (1) he was a member thereof as a result of automatic (not volitional) enrollment in connection with his employment as a city hall clerk; (2) he could not have retained such employment unless he were a member of such party; and (3), he was never active in the affairs of such party, was found to have established his admissibility to the United States, in the absence of contrary evidence in the record, because his membership therein was "involuntary" within the meaning of the act of 1918, as amended and pertinent regulations thereunder, and section 13 of the act of June 25, 1948, as amended and 8 C. F. R. appendix, section 702.8 (g).

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Section 13-Act of June 25, 1948, as amended-Participated in a movement which has been hostile to the United States (male alien). Section 10-Act of June 25, 1948, as amended-Not an eligible displaced person (both aliens).

Lodged:

Section 1 (2) (C), act of October 16, 1918, as amended-As a former member of a totalitarian party of a foreign state (male alien).

BEFORE THE BOARD

Discussion: This appeal concerns two aliens, man and wife, 50 and 43 years of age respectively, both stateless, natives of the region known as Venezia Giulia, formerly under Italian sovereignty, now part of Yugoslavia. They applied for admission to the United States for permanent residence in accordance with the Displaced Persons Act of 1948, as amended. A hearing was had before a board of special inquiry of the Immigration and Naturalization Service at Bagnoli, Italy, on April 28, 1951, and were found to be inadmissible to the United States by said board on the respective grounds set