Marcantonio v. United States, 6166.
Decision Date | 16 December 1950 |
Docket Number | No. 6166.,6166. |
Parties | MARCANTONIO v. UNITED STATES. |
Court | U.S. Court of Appeals — Fourth Circuit |
Melvin J. Sykes and Melvin S. Silberg, Baltimore, Md., for appellant.
Bernard J. Flynn, U.S. Atty., Baltimore, Md., for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal in a naturalization case. The Naturalization Examiner recommended that the petition for naturalization be granted, finding that the requirements of the law had been complied with by petitioner and that he had been a person of good moral character for the period of five years immediately preceding the filing of the petition and up to the present time. The judge below heard no evidence in the case; but the stipulation of facts and of evidence which would have been produced if allowed establish that petitioner is now, and has been since 1942, a man of good moral character. The order denying naturalization was based on convictions of crime occurring in 1928, 1934, 1938 and 1940, for which he had been pardoned. The judge said:
Petitioner was born in Italy in 1901. He came to the United States in 1922. He became involved in the unlawful liquor business in Baltimore and was three times convicted and sentenced to terms of imprisonment in connection therewith. These convictions, which were in the federal courts, were in 1928, 1938 and 1940 and the sentence under the last conviction expired May 26, 1942, more than five years prior to the filing of the petition herein. In 1934 petitioner got into a fight in a bar with another illegal liquor dealer who had been stealing liquor from him. Both men were armed and in the course of the fight petitioner shot his adversary inflicting a slight wound on him. For this he was charged with assault with intent to murder in the state court and was sentenced to three years imprisonment. In 1946 he was granted a full pardon by the President of the United States of the federal offenses of which he had been convicted and in 1949 was pardoned by the Governor of Maryland of the state offense. The petition for naturalization was filed June 10, 1947, and was denied May 22, 1950.
The record in the case shows unquestionably that defendant has reformed since his last conviction and has been a man of good moral character. He has quit the illegal liquor business and has engaged successfully in business as a contractor. He attends his church and takes an interest in its affairs. He is educating his family and has one son who has served honorably in the armed services of our country and another who has completed three years of study in college. The police sergeant who made investigation of the case in which he was convicted in the state court states that since he was last released from prison, about eight years ago, The Naturalization Examiner in presenting the case to the court, and recommending that the petition be granted, said:
The judge stated that he accepted the statement of the trial examiner as to the facts and that he did not think it necessary to hear additional evidence because he was of opinion that upon the facts appearing as to the prior convictions the petition should be denied. In this we think there was error. We entirely agree that evidence of offenses committed prior to the five year period prescribed by the statute could be received and considered with other evidence as a basis for finding that the petitioner had not shown good character within the five year period and at the time of the application as the statute requires. Molsen v. Young, 5 Cir., 182 F.2d 480, 483; Yuen Jung v. Barber, 9 Cir., 184 F.2d 491.1 No such finding was made, however, and on the record, we think, none could be made. The petition was denied on the ground, not that petitioner was not of good moral character or that he had not been of good moral character for the five year period peceding the filing of the petition, but that prior to that period he had been convicted of crimes which in the opinion of the judge raised a doubt as to whether he should be treated as "worthy of citizenship in the sense of being capable of satisfactorily exercising...
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PETITION FOR NATURALIZATION OF FERRO
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