In re Balestrieri, 78801.

• Decision Date: 30 January 1945
• Docket Number: No. 78801.,78801.
• Citation: 59 F. Supp. 181
• Court: U.S. District Court — Northern District of California
• Parties: In re BALESTRIERI.

59 F. Supp. 181

In re BALESTRIERI.

No. 78801.

District Court, N. D. California, S. D.

January 30, 1945.

Lloyd H. Garner, of San Francisco, Cal., for Department of Immigration and Naturalization.

No appearance for petitioner.

GOODMAN, District Judge.

Calogero Balestrieri, an Italian national, immigrated to the United States in 1903 at the age of thirteen years and has resided in this country continuously thereafter. He is a fish dealer by occupation, is married to an Italian national and has one child born in the United States.

On June 26, 1913, he was convicted in the Superior Court of the State of California, County of Marin, of the crime of murder in the first degree and was sentenced to life imprisonment in the San Quentin State Prison. The record shows that he was a model prisoner and trusty there and was released on parole in June, 1923. On March 15, 1932 he was granted a pardon by the Governor of the State of California. There is no doubt that, except for an arrest in 1938 for fishing without a license, for which petitioner paid a $10 fine, he has behaved in a proper manner in all respects. He has devoted himself to his family, his child being blind since birth, has purchased government bonds, donated his blood to the Blood Bank and is well and favorably regarded by his neighbors and associates.

The naturalization service recommends petitioner for citizenship solely on the ground that petitioner "has behaved as a person of good moral character" for five years prior to the filing of the petition for naturalization. 8 U.S.C.A. § 707(a).

However, being of the view that the statute in no way imposes any time limitation upon judicial inquiry as to petitioner's character, the court extended its investigation beyond the five year period and particularly into the facts and circumstances of the 1913 offense.

While the statute imposes upon applicants for citizenship the burden of proving five years good character, it does not restrict or limit in point of time, the power of the court to examine petitioner's qualifications for citizenship. In re McNeil, D. C., 14 F.Supp. 394; In re Ross, 3 Cir., 188 F. 685; In re Caroni, D.C. 13 F.2d 954; In re Laws, D.C. 59 F.Supp. 179.

The Court has examined the records pertaining to petitioner's parole and pardon and has also interviewed the trial judge who presided over the trial of the petitioner in 1913. The following excerpt from a letter of the trial judge to the Governor of California in 1929 indicates how the trial judge viewed petitioner's participation in the affray during which the murder was committed:

"I have clearly in mind the facts as they were brought out upon the trial of Balestieri. While there is no doubt in my mind but that the game warden who was killed, was brutally murdered, I was never quite sure how great a part the defendant in the case took in the affray. It clearly appeared from the evidence that the defendant's uncle was the...