Clark v. Orabona

• Citation: 59 F.2d 187
• Decision Date: 31 May 1932
• Docket Number: No. 2664.,2664.
• Parties: CLARK, Immigration Inspector, v. ORABONA.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

59 F.2d 187 (1932)

CLARK, Immigration Inspector, v. ORABONA.

No. 2664.

Circuit Court of Appeals, First Circuit.

May 31, 1932.

George R. Beane, Asst. U. S. Atty., of Providence, R. I. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., on the brief), for appellant.

Benjamin Cianciarulo, of Providence, R. I., for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This is an appeal from an order of the District Court of Rhode Island granting a writ of habeas corpus on the petition of the appellee, who is an alien, and who had been ordered deported under section 19, c. 29, 39 Stat. 889 (8 USCA § 155), on the ground that after his entry into this country he had been sentenced more than once because of a conviction for a crime involving moral turpitude.

The part of section 19 of chapter 29, 39 Stat. 889 (8 USCA § 155), applicable to this case is as follows:

"Any alien who, after February 5, 1917, is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported."

The petitioner was born in Italy in 1903 and came to this country with his parents in 1911. In 1922 he became involved in a brawl in a pool room and guns were drawn. The petitioner fired several shots. As the result of his shooting two men were severely wounded and he was indicted under two indictments for assault with intent to murder, to each of which indictments he pleaded nolo contendere. Under one indictment he was sentenced to serve four and one-half years in the state prison. Under the other indictment he was granted a deferred sentence. Three years later (1925) he was released on parole, and in 1927 he again became involved in a shooting affair and was twice indicted for an assault with intent to murder, but upon on trial on one of the indictments was acquitted. The other indictment is still pending.

The judge who heard the evidence, however, evidently satisfied that the petitioner had violated his parole, or whatever the arrangement was by which his sentence was deferred on one of the indictments in 1922, immediately imposed the deferred sentence and ordered him committed to the state prison for a term of seven years. His release on parole was again granted by the Parole Board of the State of Rhode Island on May 28, 1931.

As a result of the two sentences the Commissioner of Labor under section 19 of chapter 29, above quoted, ordered the alien deported; but upon petition for writ of habeas corpus the District Judge ordered the writ to issue.

The two sentences imposed upon the petitioner bring him clearly within the provisions of the deportation statute, if the literal interpretation of the statute is to govern. The only ground for giving any other construction to the statute is that Congress must have had in mind as a condition of deportation after the five-year period two separate and distinct acts involving moral turpitude and occurring at separate times.

That an assault with intent to murder involves moral turpitude requires no comment.

The courts in several cases have construed this provision of section 19 here involved. In Johnson v. United States ex rel. Pepe, 28 F. (2d) 810, 811, where the alien was indicted for charges of statutory arson laid in nine counts, but committed on different dates and at different buildings, and the alien was sentenced upon four of the counts, the sentences to run consecutively, the Circuit Court of Appeals for the Second Circuit held that the alien was liable to deportation and said: "In its natural and reasonable meaning `sentenced more than once to such a term of imprisonment' refers to the number of separate crimes for which sentences are imposed, not to the form of the indictment or the procedure of a single trial." (Italics supplied.)

In Nishimoto v. Nagle (C. C. A.) 44 F. (2d) 304, 306, where the alien was convicted of issuing a series of bad checks, each of which constituted a felony under the California Code, and was sentenced on separate counts the sentences to run concurrently, which the alien claimed was only one sentence, the court said:

"It will be observed that the statute does not limit the power of deportation to a second conviction, but is based upon the commission of a number of offenses for which the alien has been sentenced. The form of the sentence is obviously of no consequence. The purpose of Congress undoubtedly was to provide for the deportation of a man who committed more than one offense involving moral turpitude for which he had been convicted and upon which conviction and sentence has been imposed; whether the sentence run concurrently or...