Matter of D- — 3 I&N Dec. 51

Cite as 3 I&N Dec. 51

IN THE MATTER OF D

In DEPORTATION Proceedings A-6214908

Decided by Board October 17, 1947

Manslaughter-New Jersey-Charge of first degree murder, plea of not guilty but found guilty of manslaughter-Determination whether offense is voluntary manslaughter, which offense involves moral turpitude.

(1) An alien, indicted in New Jersey, of first degree murder (1932) , pleaded not guilty, but a jury found him guilty of manslaughter after a trial on the merits. The New Jersey criminal statutes do not define the crime of manslaughter, but the courts there held section 2 : 138-5 New Jersey Criminal Statutes embraces both voluntary and involuntary manslaughter. In the absence of evidence to the contrary in the record of conviction, the manslaughter is considered to be voluntary in such case, the indictment providing that the homicide was committed by means of an assault with malice aforethought. ( See 2, I. & N. Dec. 559. ) *

(2) Voluntary manslaughter is an offense involving moral turpitude.

(3) In determining whether a killing is voluntary or involuntary, the administrative agency is precluded from going behind the record of conviction. CHARGE : Warrant: Act of 1917-Sentenced more than once for crimes- Manslaughter ; and manslaughter Upon consideration of the entire record, the findings of fact and conclusions of law relating to deportability proposed by the presiding inspector and served on the alien by mail November 20, 1946, are hereby adopted. Discussion : The facts of this case are fully set forth in the Com- missioner's opinion. Briefly, they are as follows : The respondent is an alien, a native and citizen of Turkey, who testified that he last entered the United States at the port of New York during the year 1918 as a passenger ex S. S. Whiteland (phonetic) . He was indicted. in the State of New Jersey during June of 1932 on two charges of first degree murder. Both indictments allege that the respondent * * * "with force and arms in and upon (A and* B) wilfully and * * * * * unlawfully an assault did make ; and did then and there wilfully, unlawfully, feloniously, and of his malice aforethought kill and murder *** (A and B) . " The respondent pleaded not guilty to both indictments but two separate juries returned * * * a verdict of "Guilty of manslaughter So say they all." * Editor's note. This decision was rendered before Fong Haw Tan v. Phelan, 333 U. S. 6. See footnote 1, 2 I. & N. Dec. 578.

Cite as 3 I&N Dec. 51

The New Jersey Criminal Statutes do not define the crime of manslaughter. The courts of New Jersey have held that section 2 : 138-5, New Jersey Criminal Statutes, embraces both voluntary and involuntary manslaughter. In construing the immigration laws the courts 3 and this Board 4 have consistently held that voluntary manslaughter involves moral turpitude and that involuntary ordinarily does not. Following Mylius v. Uhl, 203 Fed. 152 (S. D. N. Y., 1913) , we are precluded from going behind the record of conviction to determine whether the killing was voluntary or involuntary. The case at bar presents an almost identical situation as that considered by the Attorney General in Matter of S—, 5530239, July 18, 1947. The only difference, as we see it, is that in the S- case the alien on two occasions was convicted on pleas of guilty to lesser offenses than that charged in the indictment, while in the case at bar the alien's pleas to both indictments were "Not guilty" and after a trial on the merits he was found guilty by the jury of a lesser offense, to wit, manslaughter. The Attorney General in the S- case ( supra) concluded that the crimes committed by the alien involved moral turpitude. He reasoned that each indictment for murder clearly charged the alien with voluntary killings and that by his (alien's) plea of guilty of manslaughter he (the alien) admitted the killing. The Attorney General stated : In the absence of other evidence in the records of conviction under Ohio statute, it is reasonable to conclude that the homicides committed by the alien were voluntary.

The judgments of conviction herein considered relate that the re- * * * spondent was found "Guilty of manslaughter so say they all. " The indictments provide that the homicides were committed by means of an assault with malice aforethought. Accordingly, they must be considered voluntary. The respondent has been convicted of two killings. Following the Attorney General's ruling in Matter of S ( supra) , we conclude that both homicides committed by the respondent were voluntary under New Jersey statutes, in the absence New Jersey Criminal Statutes, sections 2 : 138-1, 2, 5, and 11 are fully set forth in the Commissioner's opinion. (Set forth at end of this opinion. ) *State v. Biango, 75 N. J. L. 284, 68 A. 125 (Nov. 11, 1907) ; State v. Zellers, 72 N. J. L. 220 ; State v. Blaine, 137 A. 829 ( June 10, 1927) aff'd 104 N. J. L. 323, 140 A. 566 ; State v. Ireland, 126 N. J. L. 444, 20 A. 2d 69 (May 22, 1941) . Appeal dismissed, 127 N. J. L. 558, 23 A. 2d 560. *Mongiovi v. Karnuth, 30 F. (2d) 825 ( D. C. N. Y., 1929) ; U. S. ex rel. Sollano v. Doak, 5 F. Supp. 561 ( D. C. N. Y. , 1933) aff'd 68 F. (2d) 1019 ; In re Schiano Di Cola, 7 F. Supp. 194 (D. C. R. I., 1934 ) . *Matter of S—, 56020/580, June 5, 1943 ; Matter of R- N-, 55723/332, Nov. 17, 1941 ; Matter of S—, 56131/71, August 21, 1943 ; Matter of D-, 56137/380, October 26, 1943.

Cite as 3 I&N Dec. 51

of evidence to the contrary in the records of convictions. The charge stated in the warrant of arrest is therefore sustained. Order : It is ordered that the alien be deported to Turkey at Government expense on the charge stated in the warrant of arrest. The New Jersey criminal statutes pertinent to the conviction of manslaughter are as follows ( see footnote 1, supra) : SEC. 2 : 138-1. Murder. If any person, in committing or attempting to commit arson, burglary, rape, robbery, sodomy, or any unlawful act against the peace of this State, of which the probable consequences may be bloodshed, shall kill another; or if the death of anyone shall ensue from the committing or attempting to commit any such crime or act as aforesaid; or if any person shall kill any judge, magistrate, sheriff, coroner, constable, or other officer, either civil or criminal, of this State, or a marshal, or other officer of justice, either civil or criminal of the United States, in the execution of his office or duty, or shall kill any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or shall kill a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing as aforesaid shall be guilty of murder. SEC. 2: 138-2. Degrees of murder ; designation in verdict.-Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate arson, burglary, rape, robbery or sodomy, shall be murder in the first degree ; and all other kinds of murder shall be murder in the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or in the second degree. SEC. 2 : 138-5. Manslaughter.-Any person who shall commit the crime of manslaughter shall be punished by fine not exceeding one thousand dollars, or imprisonment at hard labor or otherwise not exceeding 10 years, or both. SEC. 2: 188-11. Allegations in indictment for murder and manslaughter.-In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did willfully, feloniously, and of his malice aforethought, kill, and murder the deceased ; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased. Editor's note. A similar conclusion was reached in Matter of O- , unreported (A-2351820, B. I. A. , November 4, 1947) , where the indictment in Ohio was for murder in the second degree (1925) , the respondent pleaded not guilty, but the jury found him "Guilty of manslaughter in the manner and form as he stands charged in the indictment. " The Ohio statute defining manslaughter draws no distinction between voluntary and involuntary manslaughter. ( See 2, I. & N. Dec. 560, 570, for Ohio statutes involved, and the distinctions made by Ohio courts.) The indictment provided the homicide was committed "unlawfully, purposely and maliciously." The Board said, "'as he stands charged in the indictment,' found in the judgment of conviction, must include the terms 'unlawfully, purposely, and maliciously' or else it is meaningless. In the absence of other evidence in the record of conviction, we conclude that the homicide committed by the respondent herein was voluntary and, therefore, involves moral turpitude."