« ÎnapoiContinuați »
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.
(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 negli. gence of another, etc.”. (Emphasis supplied.)
(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 laro 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 warrant conviction for fourth degree manslaughter under Statute 1929, section 340.26 had to warrant finding beyond a reasonable doubt that accused's misconduct was more reprehensible than mere want of ordinary care.
As to what constitutes "gross negligence", State v. Wickstrom, 14 Wis. 2d 416, 111 N.W.2d 176 (1961), held that to justify a conviction for causing death by a high degree of negligence in operation of a motor vehicle, the risk must be unreasonable and probability high or greater than ordinary negligence, but not so great as to constitute "wilful and wanton conduct characterizing gross negligence".
It becomes apparent, therefore, that the view of the Wisconsin courts and Legislature is that homicide by reckless conduct connotes a degree of negligence well beyond the "high degree of negligence" and "unreasonable risk” defined in section 940.08. The Supreme Court of that state has declared on several occasions that to find gross negligence "there must be present either a wilful intent to injure, or that wanton and reckless disregard of the rights of others and consequences of the act to himself which the laws deem equivalent to an intent to injure.” This might be termed "imputed intent."
Still there must not have been an intent actually to cause a death or the offense would be raised from manslaughter in the fourth degree. Schlect v. State, 75 Wis. 486, 44 N.W. 509(1890), concerned a killing by defendant during a fight in a saloon. The court held that defendant might have been convicted of manslaughter in the fourth degree, under R.S. section 4362. In Doherty v. State, 84 Wis. 152, 53 N.W. 1120 (1893), the defendant was a policeman who shot deceased during a struggle. The officer placed the muzzle of a pistol against his assailant's body and pulled the trigger. The defendant officer claimed that his intent was only to disable deceased. The court found that defendant was presumed to have intended the natural consequences of his act and to have fired with the intention to kill deceased. Therefore, he could not be convicted of manslaughter in the fourth degree under R.S. 4362 which provided that to constitute the latter offense the killing must be involuntary. A similar case is Beauregard v. State, 146 Wis. 280, 131 N.W. 347 (1911), which held that when blows on the head with a gun barrel were inflicted voluntarily, regardless of consequences, although without any specific intent to cause death, the killing was not involuntary,within the meaning of Statute 1898, par. 4362, defining manslaughter in the fourth degree.
In the instant case the fact that the jury found respondent guilty, not of second-degree murder, but of the lesser offense of homicide by reckless conduct, removed the element of “depraved mind” present in 940.02, the second-degree murder statute. To recapitulate: prior Board decisions have held that voluntary manslaughter does involve
moral turpitude, and involuntary manslaughter does not involve moral turpitude. However, the Wisconsin Code has taken all the "Crimes Against Life” out of the common-law pattern (murder, voluntary manslaughter and involuntary manslaughter). If respondent had been convicted prior to the 1955 recodification the offense would have come within section 340.26, 1929 Statutes, defining “manslaughter in the fourth degree.” The crime of homicide by reckless conduct more nearly resembles the common law offense of involuntary manslaughter than it resembles the common law offense of voluntary manslaughter. Respondent was guilty of gross negligence but, necessarily, he was found not to have had a specific intent to kill, or to do an act the natural consequence of which was to cause death.
Even if the cases have swung somewhat away from the requirement that a crime to involve moral turpitude must include such baseness, vileness or depravity as to be shocking and offensive, we still consider that voluntariness or intent to commit the act or some act must exist before we can find that the crime involves moral turpitude. We cannot find a case, or think of an instance, wherein the offense has been held to involve moral turpitude where no intent to commit the act existed.
The Wisconsin Legislature has by law declared that negligence so gross as respondent's, and conduct so reckless, implies intent and malice. Even if we believe respondent to have been in fact grossly negligent and reckless, does this statute describe a crime involving moral turpitude as a matter of law? It seems to the Board that while a legislature may in a criminal statute "impute” intent or legislate “mens rea”, it cannot do so for the purpose of establishing moral turpitude under the immigration laws.
On this record we find respondent was not convicted of a crime involving moral turpitude as a matter of law. The order of the special inquiry officer will be sustained.
ORDER: It is ordered that the order of special inquiry officer of February 12, 1962 be and is hereby sustained.
MATTER OF PITZOFF
In DEPORTATION Proceedings
Decided by Board August 13, 1962
(1) Respondent, a single female, who engaged in a meretricious husband-wife
relationship with a married man in the State of Oregon, is not deemed to have
committed adultery under the law of that State. (2) Notwithstanding respondent is not precluded from establishing good moral
character by the provisions of section 101(f) (2) of the Immigration and Nationality Act and is not statutorily ineligible for the discretionary relief of voluntary departure, her illicit sexual relations with a married man, maintained with full knowledge of her paramour's marital status, justify denial
of such relief as a matter of administrative discretion. CHARGE: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2) ]-Remained
This is an appeal from the order of the special inquiry officer finding respondent deportable upon the ground stated above and denying her application for voluntary departure. The appeal will be dismissed.
Respondent, a 19-year-old single female, a native of Bulgaria and citizen of Germany, last a resident of Canada, was admitted to the United States on January 24, 1962, as a visitor for a period ending on January 31, 1962. She failed to obtain an extension of her stay and has remained in the United States without authority. She is clearly deportable as charged.
Respondent requested voluntary departure. The special inquiry officer found her ineligible as a matter of law and also stated that had she been eligible for the relief, he would have denied it as a matter of discretion because she lacked good moral character. The finding of statutory ineligibility for voluntary departure is based upon the fact that the respondent lived in a husband and wife relationship with a married man while in the United States.
The record reveals that the respondent's paramour left his wife in New York and came to Canada where he met respondent and began