Coykendall v. Skrmetta

• Decision Date: 22 October 1927
• Docket Number: No. 5018.,5018.
• Citation: 22 F.2d 120
• Parties: COYKENDALL, District Director of Immigration, v. SKRMETTA.
• Court: U.S. Court of Appeals — Fifth Circuit

22 F.2d 120 (1927)

COYKENDALL, District Director of Immigration, v. SKRMETTA.

No. 5018.

Circuit Court of Appeals, Fifth Circuit.

October 22, 1927.

J. W. Henley, Asst. U. S. Atty., of Atlanta, Ga., for appellant.

Edgar A. Neely, of Atlanta, Ga., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This is an appeal from an order made in a habeas corpus proceeding, discharging the appellee, Nicholas Skrmetta, an alien, who complained of his detention under an order of deportation. It was disclosed that the grounds on which the deportation order was made were: (1) That prior to appellee's entry into the United States, at Brownsville, Tex., on September 5, 1924, he had been convicted of a crime involving moral turpitude, the only support for that conclusion being evidence of his conviction in California of violations of the National Prohibition Act (27 USCA), by manufacturing intoxicating liquor and having it in his possession, that conviction being based on the appellee making from grapes and having in possession for his own use 150 gallons of wine; and (2) that at the time of such entry appellee was a person likely to become a public charge, the only support for that conclusion being evidence of the facts that at the time of such entry there was pending in the United States District Court at Biloxi, Miss., where appellee had resided for several years, an indictment against him for a violation of the Harrison Anti-Narcotic Act (26 USCA §§ 211, 691 et seq. Comp. St. § 6287g et seq.), and that under that indictment he was convicted, on his plea of guilty, on June 8, 1926, and was sentenced to and served a term of six months' imprisonment in the United States Penitentiary at Atlanta.

Under the Immigration Act of 1917, at any time within five years after entry, an alien is subject to be deported if, at the time of his entry, he was a member of the class described by the words, "persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude." Sections 3, 19, 39 Stat. 875, 889 (Comp. Stat. §§ 4289¼b, 4289¼jj 8 USCA §§ 136, 155). The above-mentioned violations of the National Prohibition Act were not felonies. The words "involving moral turpitude," as long used in the law with reference to crimes, refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality, whether it is or is not punishable as a crime. They do not refer to conduct which, before it was made punishable as a crime, was not generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.

Before the enactment of statutes on the subject, the making or possession of wine for the use of the maker as a beverage was not generally regarded as morally wrong. From the fact that those acts have by statute been made punishable as crimes it does not follow that they are inherently immoral, or involve moral turpitude, within the meaning of the provision in question. Bartos v. United States (C. C. A.) 19 F.(2d) 722; Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A. L. R. 338. We conclude that the deportation order was not sustainable on the first mentioned ground.

In the Immigration Act of 1917 (39 Stat. 875, § 3) the words "persons likely to become a public charge" are not, as they were in the Immigration Act of 1907 (34 Stat. 898), as amended, mentioned between paupers and professional beggars, and along with idiots, persons dangerously diseased, persons certified by the examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a living, convicted felons, etc. The location in...