SZEGEDI

Interim Decision. #1236

MASTER OF SZEGEDI

In DEPORTATION Proceedings

A-11575482

Decided by Board Auoust,10, 1960

"Homicide by reckless conduct" in violation of section 940.00, Wisconsin Statutes,

is not a crime involving moral turpitude.

CIWIGE: Act of 1952—Section 241(a) (4) [8 U.5.0. 1251 (a) (4)1—Convicted of

crime within five years after entry.

Respondent is 34 years old, single, male, a native and citizen of

Hungary, whose only entry into the United States was on February 10,

1959 as a refugee-escapee under the Act of September 11, 1957. He

was convicted on September 17, 1961 for the crime of "Homicide by

Reckless Conduct contrary to the provisions of section 940.06 Wis-

consin Statutes", and was sentenced to confinement in the Wisconsin

State Prison for an indeterminate term of five years. At the time of

hearing he was confined in this institution. The special inquiry officer

found that the crime for which respondent was convicted was not a

crime involving moral turpitude, ordered the proceedings terminated,

and certified the case to this Board for final decision.

The District Attorney for Racine County, Wisconsin filed an infor-

mation against respondent charging that on December 26, 1960 he did

"feloniously cause the death of Ference Pinter' by conduct imminently

dangerous to him and evincing a depraved mind, regardless of human

life, contrary to the form of the statute section 9 ,10.02".1 Respondent

plead not guilty and was tried before a jury which returned a verdict

of guilty of the crime of homicide by reckless conduct. 2

Wis. Stet. Ann. 940.02 provides: "Second-degree murder—Whoever causes

the death of another human being by conduct imminently dangerous to another

and evincing a depraved mind, regardless of human lire, may be imprisoned not

less than 5 nor more than 25 years."

2 Wis. Stitt. Ann. 940.08 provides: "Homicide by reckless conduct: (1) Who-

ever causes the death of another human being by reckless conduct may be fined

not more than $2,500 or imprisoned not more than 5 years or both. (2) Reckless

conduct consists of an act which creates a situation of unreasonable risk and

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Interim Decision #1286

It is so well established as not to need elucidation, that this Board

has no authority to retry a criminal case. In making our decision we

may look only to the record, consisting of the information (or indict-

ment), the plea, the verdict, the sentence, and the pertinent statutes,

in determining whether or not the crime for which respondent was

convicted was a crime involving moral turpitude, as that term is inter-

preted by judicial and administrative decisions. Therefore, the special

inquiry officer did not inquire deeply into the circumstances behind

the commission and conviction for this crime, and properly so.

However, the special inquiry officer did. ask respondent what hap-

pened that resulted in the death of Pinter Ference (p. 6). Respondent

answered that there were three men in respondent's room : the deceased,

who was respondent's •best friend, respondent, and a third person.

Respondent stated that he was demanding money he had loaned to the

third person, that the third person refused to pay back the money,

that the deceased took respondent's shotgun, and tried to hit respondent

with the gun. "In the scuffle, my hand was also broken, and while we

were arguing and scuffling, the three of us, the gun went off and Pinter

Ferenc was shot. I did not have the gun. in my hand." The record

does not show the evidence developed in the criminal proceeding.

The precise question for determination' y the Board is whether or

not the crime of "homicide by reckless conduct" under the Wisconsin

Statutes is a crime involving moral turpitude. The special inquiry

officer quoted the definition of such &crime from Wing v. United State8,

46 F. 2d 755 (7th Cir. 1931), that it is an act of baseness, vileness or

depravity in the private and social duties which a man owes to his

fellow men, or to society in general, contrary to the accepted and

customary rules of right and duty between man and man. The special

inquiry officer concluded that while a man committing such an act (as

that described by section 940.09 may be guilty of conduct which is

contrary to the accepted and customary rules of right and duty between

man and man, the crime as defined by the statute need not be accom-

panied by a vicious motive or a corrupt mind. The special inquiry

officer says there need be no intent to cause death or inflict serious

injury, and concluded that the crime for which respondent was con-

victed did not involve moral turpitude.

Prior decisions of the Board that arose under provisions of the

codes of states other than Wisconsin, are not precisely in point, because

the offense of "homicide by reckless conduct" is a statutory offense

high probability of death or great bodily harm to another and which demon-

strates a conscious disregard for the safety of another and a willingness to take

known chances of perpetrating an injury. It is intended that this definition

embraces all of the elements of what was heretofore known as gross negligence

in the criminal law of Wisconsin."

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Interim Decision #1236

without a counterpart in the common 1;,,w, or in most codes, so far as

we can discover. The leading Board decision is Matter of B—, 2 I. & N.

Dec. 559 November 1946; A.G., July 1047) . The alien therein

was indicted on two occasions for murder in the second degree, the in-

dictments alleging that on each occasion he "unlawfully, purposely

and maliciously killed" another person. On each occasion (first in

1926 and again in 1943) the alien pleaded guilty to the lesser offense

of manslaughter and was sentenced to serve an indeterminate term

of imprisonment. Since the Ohio statute included both voluntary

and involuntary manslaughter within the same section of the law,

making no distinction, the Board decided that the crime should be

taken at its minimum and found that the convictions should be con-

sidered as having been for involuntary manslaughter. The Board

found that the acceptance of the plea of guilty to manslaughter re-

moved "the elements of purpose and malice and there remains only

the element of unlawful killing". The Attorney General reversed

the Board, finding that the manslaughter was voluntary because of

the allegations in the indictment (which defined or related to second-

degree murder), and said, "By his plea of guilty to manslaughter,

the alien admitte,d these killings. In the absence of other evidence

in the records of conviction, under the Ohio statute it is reasonable

to conclude that the homicides committed by the alien were voluntary.

Consequently, the crimes involved moral turpitude."

All other Board decisions in this area also concern indictments for

murder, either first or second degree followed by convictions for man-

slaughter. In Matter of 1—, 2 L & N. Dee. 477 (B.I.A. 1946) , the alien

was convicted of "assault with intent to commit manslaughter" in

Florida. The Board held on the basis of decisions of the Supreme

Court of Florida that this offense could only include voluntary man-

slaughter, because it required "an intent to commit." the act, and there

could be no intent to commit involuntary manslaughter. It was, there-

fore, a crime involving moral turpitude.

In Matter of B—, 4 I. & N. Dec. 493 (B.I.A. 1951), the Board found

that the New Jersey statute included both voluntary and involuntary

manslaughter, that the record did not disclose sufficient details or

circumstances surrounding the killing of and that there was no

indication that respondent had been convicted of voluntary, rather

than involuntary, manslaughter. A dissent was recorded on the

ground that the Attorney General's decision in Matter of B—, supra,

2 I. & N. Dec. 559, the Ohio case, should control.

In Matter of .11—B—, 4 I.8rN. Dec. 742 (B.I.A. 1952), the informa-

tion charged the alien with murder (wilfully, unlawfully, feloniously,

and with malice aforethought having killed a human being) and at

the time of the commission of the offense being armed with an auto-

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Interim Decision #1236

made 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 volun-

tary, 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 homi-

cide by reckless conduct, a statutory offense within the Wisconsin

Code. From the maximum penalty provided by the statute, it is ap-

parent 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 940.08 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) "evinc-

ing a depraved mind, regardless of human life," and (3) a "premedi-

tated design to effect the death of the person killed or any human

being." Raiej v. State, 152 Wis. 503, 140 N.W. 21 (1013). • The

Wisconsin second-degree murder statute eliminates the "mental pur-

pose to take life." Zenau. 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 im-

minent public disaster or imminent death to himself or another.

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Interim Decision #1236

(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. Storteeky, 273 Wis. 362, 77

N.W. 2d 721 (1956) ; Devroy T. State, 239 Wis. 466, 1 N.W. 2d 875

(1942).

The predecessor to section 940.06 was B.S. 4362, amended by Stat.

1898, par. 4863; later Stat. 1929, section 340.26, defining manslaughter

in the fourth degree. The development of this section of the Wis-

consin. Criminal Code is set forth in. Bussard v. State, 233 Wis. 11,

288 N.W. 187 (108D). Bussard was convicted of manslaughter in the

fourth degree undersection 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.) 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 earnest

time available such elmages be made in the statutes of our state by the Legis-

lature 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. 6 N.T.B. Co., 153 Wis. 108, 140

N.W. 1088 (1913), as follows:

Gross negligence has received a very certain and definite meaning in the juris-

prudence 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 law

deems equivalent to an intent to injure. (Emphasis supplied.)

In Brassard 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

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Interim Decision #I236

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 ordi-

nary care.

As to what constitutes "gross negligence", State v. Wiclestrom, 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 "un -

reasonable 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.

&hied 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 RS. section 4362. In Doherty -v. State, 84 Wis.

152, 58 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 volun-

tarily, 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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Interim Decision #1236

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 340.20, 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 require-

ment that a crime to involve moral turpitude must include such base-

ness, 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 late? It seems to the Board that -while

a legislature may in a criminal statute "impute" intent or legislate

" mans rea", it cannot do so for the purpose of establishing moral tur-

pitude 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.

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