IN THE MATTER OF T In EXCLUSION Proceedings 56156/249 Decided by the Board January 27, 1944 Ruling by Attorney General, February 24, 1944 Crime involving moral turpitude-Theft in Canada-Evidence. "Theft or stealing" under Canadian statute includes offenses which would not be so characterized in our law. Thus, a person may be convicted of theft in Canada when the real offense is not known by that name in our law and does not involve moral turpitude. In these circumstances, it is permissible to go beyond the foreign statute and to consider such facts as may appear from the record of conviction or the admissions of the alien, in order to determine by independent judgment whether, under our law, the offense is one which involves moral turpitude. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1917-Convicted of crime involving moral turpitude, to wit: BEFORE THE BOARD Discussion: The appellant, a native and citizen of Canada, 21 years of age and single, applied at Detroit, Mich., on June 22, 1943, for admission to the United States as a local border crosser. He presented a nonresident alien's border crossing identification card issued to him May 10, 1943, by the American consulate at Windsor, Ontario, and properly endorsed by the Canadian immigration authorities. A Board of Special Inquiry excluded him on the ground above stated after hearings on June 22, 1943, and September 29, 1943. On September 17, 1941, at Sceptre, Saskatchewan, the appellant was convicted before a police magistrate of theft in that he "did steal one automobile coil of the approximate value of three dollars ($3.00), the property of one H-S-, contrary to section 386 of the Criminal Code of Canada." Following his conviction the appellant received a suspended sentence of 6 months on recognizance. He was subsequently discharged from such recognizance. While on its face the conviction appears to be of slight importance in connection with an application for temporary admission to the United States, that is not the only question involved. The record presents the issue of whether theft as defined by the Canadian statute involves moral turpitude and, if it does, then the excluding decision of the Board of Special Inquiry must be sustained, although discretionary action to admit temporarily is taken. Larceny and theft, whether petty or grand, has uniformly been held to involve moral turpitude (Tillinghast v. Edmead, 1929, 31 F. (2d) 81, C. C. A.-1; United States ex rel. Rizzio v. Kenney, 1931, 50 F. (2d) 418, D. C. Conn.) and it was determined in United States ex rel. Chartrand v. Karnuth, 1940, 31 F. Supp. 799, D. C. N. D. N. Y., that theft in Canada involves that element. The words "involving moral turpitude" refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality (Coykendall v. Skrmetta, 1927, 22 F. (2d) 120, (C. C. A. 2). Whether a particular crime involves moral turpitude is determined by standards prevailing in the United States (39 Ops. Atty. Gen. 95, 96). In considering the rule it is not permissible to consider circumstances under which the crime was committed. The inquiry is limited to the inherent nature of the crime as defined by the statute and established by the record of conviction. If the crime as defined does not necessarily involve moral turpitude, the alien cannot be excluded because in the particular instance his conduct was immoral. Conversely, if the crime as defined necessarily involves moral turpitude, no evidence is competent to show that moral turpitude was not involved (United States ex rel. Robinson v. Day, 1931, 51 F. (2d) 1922, C. C. A. 2). If one statute defines several crimes, some of which involve moral turpitude and some of which do not, and the statute is divisible, it is permissible to ascertain by examination of the record of conviction whether the particular offense involved moral turpitude. The record of conviction means the charge (indictment), plea, verdict, and sentence (United States ex rel. Zaffarano v. Corsi, 1933, 63 F. (2d) 757, C. C. A. 2). Section 386 of the Canadian Criminal Code does not define the crime of theft. It provides the penalty for that crime. It reads: Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals anything for the stealing of which no punishment is otherwise provided or commits in respect thereof any offence for which he is liable to the same punishment as if he had stolen the same. 2. The offender is liable to ten years' imprisonment if he has been previously convicted of theft. Despite the allegation in the record of conviction, the appellant was not proceeded against by indictment and was not sentenced in pursuance of section 386 of the Criminal Code of Canada. He was tried summarily under the jurisdiction given to magistrates in the Province of Saskatchewan by section 777 (1) of the Canadian Criminal Code. Under this section a magistrate has absolute jurisdiction to try persons charged with theft of property, the value of which does not exceed $25. The punishment that may be imposed by a magistrate for such offense after summary trial is governed by section 778 of the Canadian Criminal Code which provides a maximum term of im prisonment in a common gaol or other place of confinement for a period not exceeding 6 months. The crime of theft in Canada is now defined by section 347 of the Criminal Code of Canada as follows: Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent, (a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or (b) to pledge the same or deposit it as security; or (c) to part with it under a condition as to its return which the person parting with it may be unable to perform; or (d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion. 2. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it. 3. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment. 4. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting. Since the taking or converting must in every case be fraudulent, the definition includes the element of fraud. "Fraudulent" has often been used and defined in various meanings by textbook writers, courts, and others. At times, a relatively innocuous meaning has been assigned to the word. However, we are only concerned with the sense in which it is used in the Canadian Criminal Code and not elsewhere. In Hammond v. The King, 55 Can. Cr. Cas. 301, at p. 303, the Canadian court said: It is scarcely necessary to say that the words "fraudulently and without colour of right" are essentials of the definition of theft or stealing. The fact of taking and appropriating or converting to one's own use, a thing capable of being stolen, constitutes theft only if it is done fraudulently and without colour of right. Again in King v. Clark. 5 Can. Cr. Cas. 235, 240, the court, after recognizing that a fraudulent taking is essential to theft proceeded to determine whether the accused had committed a fraudulent taking by considering whether he was motivated by an intent to defraud. Crimes involving fraud have repeatedly been held to involve moral turpitude, within the purview of the immigration laws (Mercer v. Lence, 1938, 96 F. (2d) 122, C. C. A. 10; Ponzi v. Ward, 1934, 7 F. Supp. 736, D. C. Mass. ; Opinion of the Attorney General, In re H56133/119, August 16, 1943). Subdivision (a) of the Canadian definition of theft covers cases of taking with intent to deprive the owner of his property either tem porarily or permanently. As application of the rule must be uniform (U. S. ex rel. Mylius v. Uhl, 210 Fed. 860), the statute must be taken at its minimum unless its provisions are divisible, and if divisible—one or more of its provisions describing offenses involving moral turpitude, and others describing offenses not involving that element-the charge as shown by the record of conviction is controlling as to which provision of the statute is involved (U. S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757). If the particular provision describes an act involving moral turpitude, other evidence may not be received to show that turpitude was not involved; and, on the contrary, if the charge relates to a provision which describes an act not involving moral turpitude, extraneous evidence may not be received to show that moral turpitude was in fact involved (U. S. ex rel Robinson v. Day, 51 F. (2d) 1922). The dissenting opinion expresses the view that theft, as defined in Canada, may or may not involve moral turpitude, the determining factor being whether the offense was committed with intent to deprive permanently or with intent to deprive temporarily; if the former, moral turpitude is involved, and if the latter, it is not. However, the criminal procedure prevailing in Canada is such that the indictment does not show whether the taking was permanent or temporary; it need only allege that the accused "stole" or "did steal." Part XXV of the Canadian Criminal Code prescribes the general forms to be employed under the criminal code. Form 64 sets forth examples of the manner of stating offenses in indictments. Form 64 (b) charges theft as follows: "A stole a sack of flour from a ship called at In George v. The King, 5 Can. Cr. Cas. 469, aff'd 8 Can. Cr. Cas. 401, the indictment charged that the defendant "did unlawfully steal one piece of Oregon pine wood." The defendant challenged the sufficiency of the indictment contending that it should have averred that it was done “fraudulently and without colour of right and with intent, etc." The court, in upholding the indictment, said: * The words "unlawfully did steal" in the charge mean and include everything necessary to constitute the offense of theft or stealing as defined by section 305 (now 347). They mean that the stealing or theft which was committed was done fraudulently and without colour of right and with intent, etc. It is not only legally sufficient to charge theft by alleging that the accused "stole" or "did steal," but under established practice in Canada little more is said in the information or indictment. We addressed an inquiry to the Secretary of the Canadian Legation in Washington requesting information as to whether a record of conviction for theft under section 347 (a) shows the taking to have been for a temporary or permanent purpose. The reply, dated January 4, 1943, contains the following paragraph: The question has since been considered by the Department of Justice in Ottawa and the reply is that in charges laid under the foregoing section of the Criminal Code no distinction is made in cases where the theft involved is for a temporary purpose only and the information or indictment containing the charge and the conviction under this section exhibits no such distinction. Since we could never determine that the offense was committed with intent to deprive permanently, we would be led, if the views of the dissent were followed, to the indefensible result that no conviction for theft in Canada, however serious, base, or depraved the offense might be, involves moral turpitude. We have in the past experienced difficulty in determining whether theft in Canada involves moral turpitude. As a consequence, our holdings have not been consistent. On April 9, 1943, in the case of H- Q, 56127/884, we held that the offense did involve moral turpitude. Subsequently, on June 15, 1943, we held that it did not in the case of E- G-W56143/310. No uniform administrative course of action as to this offense has as yet been established. After reconsideration of the entire problem, we are convinced that the proper conclusion is reached by reverting to our original position taken in the Q― case, supra. We think that (1) a fraudulent taking, (2) without colour of right, and (3) with the intent to deprive the owner of his property, involves moral turpitude in any case, whether the taking was temporary or permanent. Attention, however, has been directed to the fact we have held that driving an automobile without the consent of the owner, in violation of statute, does not involve moral turpitude, and to hold that a conviction under the Canadian statute for a temporary taking does involve moral turpitude would be inconsistent with the rulings in the automobile driving cases. But Canada makes separate provision in section 285 (3) of its Criminal Code for the punishment of those who take another's motor vehicle without permission. This section of the Code is similar to those of Michigan (Act No. 328 Public Acts of 1931, sec. 414), Minnesota (Minnesota Statutes, sec. 2717-1), and Washington (sec. 2601-1, Revised Statutes of Washington), which we have held does not involve moral turpitude. We have already determined that the Canadian statute likewise does not involve moral turpitude (In re T, 56156/106). There would be no inconsistency in holding that a conviction for stealing an automobile prosecuted under section 347 of the Criminal Code of Canada does involve moral turpitude. For the courts of Canada have said of these two sections-the "joyriding statute" (sec. 285 (3)) and the theft statute (sec. 347)—the following: A comparison of this section (285) (3)) and that one (347) defining theft shows that they deal with distinct offenses, and that while the essen * * tial elements of the major one, theft, include all the elements necessary to secure a conviction under s. 285, yet an offender may be convicted of the minor one |