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

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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

A-12470682

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 longer-visitor.

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

the relationship with her apparently in late 1961. He came to the United States about January 1962, the respondent joined him shortly thereafter and they commenced living together. The man testified that he had been separated from his wife for about a year, that neither he nor his wife saw any possibility of reconciliation, and that both desired a divorce. The respondent and her partner stated they intended to marry.

Section 244 (e) of the Act (8 U.S.C. 1254(e)) under which the respondent applied for voluntary departure requires the applicant to establish good moral character for five years. Section 101 (f)(2) of the Act (8 U.S.C. 1101(f) (2)) provides that no person shall be found to be a person of good moral character who during the period for which good moral character must be established "has committed adultery." In finding that respondent had committed adultery and was, therefore, statutorily ineligible for the relief requested, the special inquiry officer relied upon the fact that in the State of Oregon a single female who has illicit sexual intercourse with a married man may be prosecuted for adultery (State v. Case, 61 Oreg. 265). Counsel is of the belief that it is improper to apply a state standard since a federal law is involved. He contends that in the absence of a federal statutory definition, the common law definition should obtain, and points to the fact that under the common law adultery could be committed only where the woman was married. Admitting that there is no case directly on the point, he relies upon Evans v. Murff, 135 F. Supp. 907 (D.C. Md. 1955); Dickhoff v. Shaughnessy, 142 F. Supp. 535 (S.D. N.Y. 1956); and United States v. Shaughnessy, 221 F. 2d 578 (2d Cir. 1955).

Under the common law, both parties committed adultery, if a married woman engaged in sexual relations with a man other than her husband whether the man was married or single. Under ecclesiastical law, adultery existed as to the married person, whether male or female, who engaged in sexual relations with one other than the lawful spouse. It mattered not that the unlawful partner was married or single; however, if the unlawful partner was single, the single person's crime was not adultery, but fornication. In most jurisdictions in the United States, the common law definition has been enlarged by statute to provide that adultery is committed by a married person who has sexual intercourse with some person other than the lawful spouse. It is in this last sense that adultery is popularly defined. An unmarried partner in the illicit affair is in some states guilty of adultery while in other states the single person cannot be convicted of adultery (2 C.J.S. Adultery secs. 1 and 11).

We find no clear-cut judicial holding that a federal standard based upon the common law definition of adultery should apply in constru

ing section 101 (f) (2) of the Act. U.S. ex rel. Zacharias v. Shaughnessy, 221 F. 2d 578 (2d Cir. 1955) (single man-married woman) holds that the provisions of the Act concerning good moral character did not apply to Zacharias because of the existence of a savings clause. The courts' comments concerning adultery are dicta. Furthermore, it is to be noted that the court held adultery existed under either the common law or the law of New York where the acts of adultery were committed. Dickhoff v. Shaughnessy, 142 F. Supp. 535, S.D.N.Y. (1956) (married man-single woman) concerned a commission of adultery that was artificial in that it was the result of a divorced man remarrying without knowledge that his divorce was invalid. No federal definition of adultery was attempted, the court holding that adultery, if adultery had been committed, could be found only by reason of the New York statutes. The court pointed out that if the common law were relied upon, there would have been no adultery (142 F. Supp. at 539). (The court also stated that Congress desired to rely upon the past judicial interpretations as to good moral character (142) F. Supp. at 539.) Evans v. Murff, 135 F. Supp. 907 (D. Md. 1955) (single man-married woman) holds that Congress intended that the definition of adultery be the same throughout the country and that Congress probably intended to apply the common law to the definition of adultery rather than the ecclesiastical. However, it is noted that the court found that in the case before it that adultery had probably been committed under the laws of Maryland. Moreover, by reserving the question as to whether adultery is committed by a married man who has sexual intercourse with an unmarried woman, the court indicated that the common law definition may not control (135 F. Supp. at 911).

The history of the legislation reveals no indication that Congress desired that the common law standard be imposed or that there be a departure from the administrative and judicial reliance upon state law in determining whether adultery existed. The committee of Congress upon whose recommendation the Act was based recommended that "more uniform regulations should be employed *** to the end that a higher general standard of goods (sic) morals and personal and political conduct are (sic) established" and comment was made concerning the "confusion" which existed because all aliens who had committed adultery were not treated alike by both courts and adminis trative officials (S. Rept. No. 1515, 81st Cong. 2d Sess. 699-701 (1950), see, S. Rept. No. 1137, 82nd Cong. 2d Sess. 6 (1952)). It is our belief that Congress' desire that there be uniformity related not to the method to be used in determining whether adultery had been committed, but related rather to the desire that all persons who had committed adultery should be barred from the prizes of the law. This