without a counterpart in the common law, or in most codes, so far as we can discover. The leading Board decision is Matter of S-, 2 I. & N. Dec. 559 (B.I.A., November 1946; A.G., July 1947). The alien therein was indicted on two occasions for murder in the second degree, the indictments alleging that on each occasion he "unlawfully, purposely and maliciously killed" another person. On each occasion (first in 1926 and again in 1943) the alien pleaded guilty to the lesser offense of manslaughter and was sentenced to serve an indeterminate term of imprisonment. Since the Ohio statute included both voluntary and involuntary manslaughter within the same section of the law, making no distinction, the Board decided that the crime should be taken at its minimum and found that the convictions should be considered as having been for involuntary manslaughter. The Board found that the acceptance of the plea of guilty to manslaughter removed "the elements of purpose and malice and there remains only the element of unlawful killing". The Attorney General reversed the Board, finding that the manslaughter was voluntary because of the allegations in the indictment (which defined or related to seconddegree murder), and said, "By his plea of guilty to manslaughter, the alien admitted these killings. In the absence of other evidence in the records of conviction, under the Ohio statute it is reasonable to conclude that the homicides committed by the alien were voluntary. Consequently, the crimes involved moral turpitude.”

All other Board decisions in this area also concern indictments for murder, either first or second degree followed by convictions for manslaughter. In Matter of J-, 2 I. & N. Dec. 477 (B.I.A. 1946), the alien was convicted of "assault with intent to commit manslaughter" in Florida. The Board held on the basis of decisions of the Supreme Court of Florida that this offense could only include voluntary manslaughter, because it required "an intent to commit" the act, and there could be no intent to commit involuntary manslaughter. It was, therefore, a crime involving moral turpitude.

In Matter of B-, 4 I. & N. Dec. 493 (B.I.A. 1951), the Board found that the New Jersey statute included both voluntary and involuntary manslaughter, that the record did not disclose sufficient details or circumstances surrounding the killing of B-, and that there was no indication that respondent had been convicted of voluntary, rather than involuntary, manslaughter. A dissent was recorded on the ground that the Attorney General's decision in Matter of S-, supra, 2 I. & N. Dec. 559, the Ohio case, should control.

In Matter of H—R—, 4 I.&N. Dec. 742 (B.I.A. 1952), the information charged the alien with murder (wilfully, unlawfully, feloniously, and with malice aforethought having killed a human being) and at the time of the commission of the offense being armed with an auto

matic revolver. The court found the alien guilty of manslaughter. The California Code, section 192, at the time of the alien's conviction defined murder and two kinds of manslaughter. The alien was clearly charged in the information with a voluntary killing, and there was no evidence in the record to support a finding of involuntary manslaughter. In the light of the Attorney General's decision in Matter of S-, we concluded that the homicide committed was voluntary, and therefore involved moral turpitude.

The instant case is not governed by the Attorney General's decision in Matter of S-, supra, 2 I. & N. Dec. 559, because the offense of which Szegedi was convicted was not designated manslaughter, but homicide by reckless conduct, a statutory offense within the Wisconsin Code. From the maximum penalty provided by the statute, it is apparent that this is a lesser crime than manslaughter. Section 940.05 provides a maximum penalty for manslaughter of not more than 10 years. Section 940.06 provides a maximum penalty for homicide by reckless conduct of not more than $2,500 fine, or imprisonment for not more than 5 years, or both.

At present the Wisconsin Code provides ten degrees of Crimes Against Life, including Abortion and Assisting a Suicide. There are three degrees of Murder (sections 940.01-03), and the section on Manslaughter has four subsections. Section 940.06 with which we are concerned is set forth in footnote 2, and requires and defines "gross negligence."

For first degree murder all the statutory elements must be present : That is, (1) an act "imminently dangerous to others" and (2) "evincing a depraved mind, regardless of human life," and (3) a "premeditated design to effect the death of the person killed or any human being." Radej v. State, 152 Wis. 503, 140 N.W. 21 (1913). The Wisconsin second-degree murder statute eliminates the "mental purpose to take life." Zenou v. State, 4 Wis. 2d 655, 91 N.W. 2d 208

'940.05, Manslaughter: Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than ten years:

(1) Without intent to kill and while in the heat of passion; or

(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; or

(3) Because such person is coerced by threats made by someone other than his co-conspirator and which causes him reasonably to believe that his act is the only means of preventing imminent death to himself or another; or

(4) Because the pressure of natural physical forces causes such person reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another.

without a counterpart in the common law, or in most codes, so far as we can discover. The leading Board decision is Matter of S―, 2 I. & N. Dec. 559 (B.I.A., November 1946; A.G., July 1947). The alien therein was indicted on two occasions for murder in the second degree, the indictments alleging that on each occasion he "unlawfully, purposely and maliciously killed" another person. On each occasion (first in 1926 and again in 1943) the alien pleaded guilty to the lesser offense of manslaughter and was sentenced to serve an indeterminate term of imprisonment. Since the Ohio statute included both voluntary and involuntary manslaughter within the same section of the law, making no distinction, the Board decided that the crime should be taken at its minimum and found that the convictions should be considered as having been for involuntary manslaughter. The Board found that the acceptance of the plea of guilty to manslaughter removed "the elements of purpose and malice and there remains only the element of unlawful killing". The Attorney General reversed the Board, finding that the manslaughter was voluntary because of the allegations in the indictment (which defined or related to seconddegree murder), and said, "By his plea of guilty to manslaughter, the alien admitted these killings. In the absence of other evidence in the records of conviction, under the Ohio statute it is reasonable to conclude that the homicides committed by the alien were voluntary. Consequently, the crimes involved moral turpitude."

All other Board decisions in this area also concern indictments for murder, either first or second degree followed by convictions for manslaughter. In Matter of J-, 2 I. & N. Dec. 477 (B.I.A. 1946), the alien was convicted of "assault with intent to commit manslaughter” in Florida. The Board held on the basis of decisions of the Supreme Court of Florida that this offense could only include voluntary manslaughter, because it required "an intent to commit" the act, and there could be no intent to commit involuntary manslaughter. It was, therefore, a crime involving moral turpitude.

In Matter of B-,4 I. & N. Dec. 493 (B.I.A. 1951), the Board found that the New Jersey statute included both voluntary and involuntary manslaughter, that the record did not disclose sufficient details or circumstances surrounding the killing of B-, and that there was no indication that respondent had been convicted of voluntary, rather than involuntary, manslaughter. A dissent was recorded on the ground that the Attorney General's decision in Matter of S-, supra, 2 I. & N. Dec. 559, the Ohio case, should control.

In Matter of H-R-, 4 I.&N. Dec. 742 (B.I.A. 1952), the information charged the alien with murder (wilfully, unlawfully, feloniously, and with malice aforethought having killed a human being) and at the time of the commission of the offense being armed with an auto

matic revolver. The court found the alien guilty of manslaughter. The California Code, section 192, at the time of the alien's conviction defined murder and two kinds of manslaughter. The alien was clearly charged in the information with a voluntary killing, and there was no evidence in the record to support a finding of involuntary manslaughter. In the light of the Attorney General's decision in Matter of S-, we concluded that the homicide committed was voluntary, and therefore involved moral turpitude.

The instant case is not governed by the Attorney General's decision in Matter of S-, supra, 2 I. & N. Dec. 559, because the offense of which Szegedi was convicted was not designated manslaughter, but homicide by reckless conduct, a statutory offense within the Wisconsin Code. From the maximum penalty provided by the statute, it is apparent that this is a lesser crime than manslaughter. Section 940.05 provides a maximum penalty for manslaughter of not more than 10 years. Section 940.06 provides a maximum penalty for homicide by reckless conduct of not more than $2,500 fine, or imprisonment for not more than 5 years, or both.

At present the Wisconsin Code provides ten degrees of Crimes Against Life, including Abortion and Assisting a Suicide. There are three degrees of Murder (sections 940.01-03), and the section on Manslaughter has four subsections. Section 940.06 with which we are concerned is set forth in footnote 2, and requires and defines "gross negligence."

For first degree murder all the statutory elements must be present: That is, (1) an act "imminently dangerous to others" and (2) "evincing a depraved mind, regardless of human life," and (3) a "premeditated design to effect the death of the person killed or any human being." Radej v. State, 152 Wis. 503, 140 N.W. 21 (1913). The Wisconsin second-degree murder statute eliminates the "mental purpose to take life." Zenou v. State, 4 Wis. 2d 655, 91 N.W. 2d 208

3940.05, Manslaughter: Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than ten years:

(1) Without intent to kill and while in the heat of passion; or

(2) Unnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony; or

(3) Because such person is coerced by threats made by someone other than his co-conspirator and which causes him reasonably to believe that his act is the only means of preventing imminent death to himself or another; or

(4) Because the pressure of natural physical forces causes such person reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another.

(1953), says, the "depravity" referred to in the statutory definition of second-degree murder is present as well in first-degree murder, the difference being absence of a "design" to effect death. Walsh v. State, 195 Wis. 540, 218 N.W. 714 (1928). The "heat of passion" reduced what would otherwise be murder to manslaughter in the second or third degree (usually third). State v. Stortecky, 273 Wis. 362, 77 N.W. 2d 721 (1956); Devroy v. State, 239 Wis. 466, 1 N.W. 2d 875 (1942).

The predecessor to section 940.06 was R.S. 4362, amended by Stat. 1898, par. 4363; later Stat. 1929, section 340.26, defining manslaughter in the fourth degree. The development of this section of the Wisconsin Criminal Code is set forth in Bussard v. State, 233 Wis. 11, 288 N.W. 187 (1939). Bussard was convicted of manslaughter in the fourth degree under section 340.26, which provided as follows: Every other killing of a human being by the act, procurement or gross negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree. (Emphasis supplied.)

Prior to the amendment in 1929, the same section, Stat. 1927, 340.26, was identical with the 1929 version, except that it read, "Every other killing of a human being by the act, procurement or culpable negligence of another, etc.". (Emphasis supplied.) The amendment in 1929 was adopted following a request of the Supreme Court of Wisconsin in Clemens v. State, 176 Wis. 289, 185 N.W. 209 (1921), wherein "culpable negligence" was held to be ordinary negligence in that state. The court in Bussard said:

It was there pointed out that as a result of mere inadvertence a person might in this state be convicted of the crime of manslaughter with the necessary serious consequences to himself and his family. It was suggested that at the earliest time available such changes be made in the statutes of our state by the Legislature as will require, in order to convict of manslaughter in the fourth degree, gross negligence, as defined in the decisions of this court.

Gross negligence had been defined previously by the Wisconsin Supreme Court in Jorgenson v. C. & N.W.R. Co., 153 Wis. 108, 140 N.W. 1088 (1913), as follows:

Gross negligence has received a very certain and definite meaning in the jurisprudence of this state, somewhat different from the meaning given to it in other states; it is not inadvertence in any degree; there must be present either willful intent to injure, or that wanton and reckless disregard of the rights of others and the consequences of the act to himself, as well as others, which the law deems equivalent to an intent to injure. (Emphasis supplied.)

In Bussard v. State, supra, the Supreme Court said that, while the defendant had been negligent in a high degree, it could find no evidence of wantonness, recklessness, or willfulness. State v. Whatley, 210 Wis. 157, 245 N.W. 93 (1932), says that evidence of gross negligence to