The opinion of the court was delivered by: BRYAN
Plaintiff sues for a declaratory judgment, under Section 10 of the Administrative Procedure Act, 5 U.S.C.A. 1009, to set aside an order and warrant of deportation issued pursuant to an administrative finding that plaintiff is deportable under Section 241(a)(4) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a)(4), as an alien who, after entry, has been convicted of two crimes involving moral turpitude.
The plaintiff has moved for a preliminary injunction restraining enforcement of the order and warrant of deportation pending the determination of this action. Defendant cross-moves for summary judgment under Rule 56, F.R.Civ.P. 28 U.S.C.A., upon the complaint and the administrative record. I will treat the plaintiff's request for an order terminating the deportation proceedings as, in turn, a counter-motion for summary judgment in his favor, pursuant to Rule 56(a), and will determine the issues on that basis.
Plaintiff, who has resided in the United States for some 59 years, was born in Italy in 1897. His parents brought him to the United States as a small infant in 1899. A few years after his arrival Tutrone's mother died and he was placed in an orphanage in Brooklyn. He left the orphanage in 1911 or 1912 and went to live with his father.
The Government contends that the undisputed evidence shows (a) that in 1914, when he was sixteen or seventeen years old, Tutrone, under the name 'Charles Marino', was convicted of petty larceny in the Court of Special Sessions of the City of New York upon a plea of guilty and was committed to the House of Refuge, and (b) that, in 1917, under the name of 'Joseph Rosso', he was convicted of attempted burglary in the third degree in the Kings County Court upon a guilty plea. The Government therefore asserts that plaintiff is deportable as an alien who at any time after entry has been 'convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.' 8 U.S.C.A. § 1251(a)(4).
Plaintiff, while denying that the Government has sufficiently established that he was the person convicted in these two cases, asserts that, even were his identity with the named defendants conclusively proven, he would not be deportable because neither of the crimes for which he was convicted involve moral turpitude within the meaning of 8 U.S.C.A. § 1251(a)(4).
Thus, if it be determined that either of these were not convictions of crimes involving moral turpitude, the plaintiff must prevail since the Government would have failed to establish two such convictions which the statute requires as the prerequisite to deportability on which the Government relies here.
The defendant has two other convictions on his record. The first, in 1920, for possession of burglar's tools, does not involve moral turpitude, as the Government concedes. See United States ex rel. Guarino v. Uhl, 2 Cir., 107 F.2d 399. The other, on a plea of guilty to manslaughter in the second degree, unarmed, under an indictment charging murder in the first degree, is in the same category, as the Government also concedes. United States ex rel. Mongiovi v. Karnuth, D.C.W.D.N.Y., 30 F.2d 825; see, also, In re Schiano Di Cola, D.C.D.R.I., 7 F.Supp. 194.
The incidents giving rise to the manslaughter conviction took place in 1922. Plaintiff was involved in a fight with a man who owed him money. The man drew a revolver and in the ensuing struggle with Tutrone was shot and killed. As a result Tutrone fled New York and was not apprehended until 1938, sixteen years later. He then pleaded guilty to manslaughter in the second degree, served twelve years of a fifteen year sentence and was released in 1950. Upon his release he was arrested on a warrant of deportation and the proceedings now under review ensued. He is said to have lived an exemplary life since his release and there is no evidence to the contrary.
The Government thus stands or falls on its contention that the 1914 conviction for petty larceny and the 1917 conviction for attempted burglary in the third degree were convictions of the plaintiff for crimes involving moral turpitude.
I will assume for purposes of discussion that plaintiff was in fact the person who was convicted of these two crimes. Was the conviction of the plaintiff for petty larceny at the age of sixteen or seventeen, for which he was committed to the House of Refuge, a conviction of a crime involving moral turpitude?
The essential question in determining whether a crime involves moral turpitude is whether the proscribed act, as defined by the law of the State in which it was committed, includes elements which necessarily demonstrate the baseness, vileness and depravity of the perpetrator. Ng Sui Wing v. United States, 7 Cir., 46 F.2d 755, 756; United States ex rel. Mongiovi v. Karnuth, supra. Larceny has been held to be a crime involving moral turpitude no matter how small or insignificant the value of the thing stolen. Quilodran-Brau v. Holland, 3 Cir., 232 F.2d 183; United States ex rel. Ventura v. Shaughnessy, 2 Cir., 219 F.2d 249; Tillinghast v. Edmead, 1 Cir., 31 F.2d 81.
But there have been strong, well-considered and enlightened dissents from this view where the offense was a trifling one and there were mitigating circumstances, e.g., Ex parte Edmead, D.C.Mass., 27 F.2d 438, reversed Tillinghast v. Edmead, 1 Cir., 31 F.2d 81; Anderson, C.J. dissenting in Tillinghast v. Edmead, supra, 31 F.2d 84.
Be this as it may, the real question here is whether the conviction in 1914 of a seventeen year old youth of a first offense of petty larceny with commitment to the House of Refuge can, in this relatively enlightened era, be held to be conviction of a crime which involves moral turpitude -- that is to say, necessarily demonstrates the baseness, vileness and depravity of the perpetrator. It seems to me that to hold it was would flout the decent and modern standards for dealing with youthful offenders which have been generally accepted and have been part of the statutory law of the State of New York, and most others, for many years.
In 1943 New York enacted its 'Youthful Offender Act', L.1943, c. 549, L.1944, c. 632, New York Code of Criminal Procedure, § 913-e et seq., which provided that a youth who has reached the age of sixteen but has not reached the age of nineteen, who has not been previously convicted of a felony, and who has committed a crime, may be adjudged a youthful offender. A youth so adjudged may not be 'denominated a criminal by reason of such determination, nor shall such determination be deemed a conviction.' Moreover, 'No determination * * * shall operate as a disqualification of any youth subsequently to hold public office, public employment, or as a forfeiture of any right or privilege or to receive any license granted by public authority.' Code of Criminal Procedure, § 913-n. Upon adjudication as a youthful offender the court may ...