Perkins v. United States, 6413.
| Decision Date | 03 October 1938 |
| Docket Number | No. 6413.,6413. |
| Citation | 99 F.2d 255 |
| Parties | PERKINS, Secretary of Department of Labor, et al. v. UNITED STATES ex rel. MALESEVIC. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles F. Uhl, U. S. Atty., and Premo J. Columbus, Asst. U. S. Atty., both of Pittsburgh, Pa., for appellants.
Zeno Fritz, of Pittsburgh, Pa., for appellee.
Adrian Bonnelly, of Philadelphia, Pa., amicus curiæ.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
Savo Malesevic, an alien, the appellee upon the relation of the United States, is a subject of what is now the Kingdom of Yugo-Slavia, and legally entered the United States for the first time at the port of Boston in September, 1913. He has remained in this country until the present time, with the exception of an absence upon one trip made by him to Yugo-Slavia. Upon this occasion he left the United States upon June 3, 1931, and returned upon August 12, 1931. After his return he was arrested upon a warrant issued under the provisions of Section 19 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 889, 8 U.S.C.A. § 155, charging that he had been convicted prior to his re-entry to the United States of a crime involving moral turpitude. After hearing, he was ordered deported. The appellee thereupon filed a petition for writ of habeas corpus to the District Court of the United States for the Western District of Pennsylvania, and, after hearing by the District Court, was discharged from custody upon the warrant of deportation. 17 F.Supp. 851.
It appears from the record of the case at bar that upon May 12, 1919, the appellee was convicted in the Court of Quarter Sessions of Allegheny County, Pennsylvania, of breaking and entering a building, and larceny, a felony involving moral turpitude. He was sentenced by the Court of Quarter Sessions to a term of from two to four years. He served his alloted sentence until May 16, 1921, and was released thereafter upon parole, the parole period ending in June, 1923. He therefore served the sentence imposed upon him by the Court of Quarter Sessions.
Section 19 of the Immigration Act of February 5, 1917, provides in part: .
Section 181 of the Act of March 31, 1860, Public Laws of Pennsylvania 382 (Section 893 of Title 19 of Purdon's Statutes) provides in part: "Where any person hath been or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted * * *".
The appellants contend that because Malesevic was sentenced to the term described for a crime involving moral turpitude prior to his re-entry into the United States upon August 12, 1931, the pardon provision contained in Section 19 of the Immigration Act is inapplicable and he may be deported. Their reasoning is as follows: In the case of United States v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, the Supreme Court held that page 667 "* * * the second coming of an alien from a foreign country into the United States is an entry within the usual acceptation of that word * * *". Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L. Ed. 967; U. S. ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758. The appellants next contend, relying on the decision of the Circuit Court of Appeals of the Second Circuit in U. S. ex rel. Palermo v. Smith, 17 F.2d 534, that the phrase "except as hereinafter provided" page 535 occurring in the statute as quoted refers to the pardon provision of the Act. Since that phrase occurs only in that clause relating to deportation for crimes involving moral turpitude before entry, set off from the other clauses by semicolons, it follows, contend the appellants, that the provision of the statute relating to pardons cannot apply to crimes involving moral turpitude committed prior to entry. The conclusion reached by the appellants therefore is that though Malesevic's crime was committed after entry, since it was committed prior to his re-entry into the United States, the statutory pardon of Pennsylvania affords him no assistance and he may be deported.
The facts of U. S. ex rel. Palermo v. Smith, cited above, are as follows: Palermo, a native of Italy, came to the United States in December, 1919. In 1924 he was arrested on a warrant of the Department of Labor charging that he had been convicted of the crime of murder in Italy prior to his entry into the United States. At the hearing, it appeared that he had been arrested, convicted and sentenced to death in December, 1883, and that in July, 1884, the death sentence was commuted to life imprisonment. He served this sentence in prison until 1919, at which time he was pardoned and released. He was ordered deported. He sued out a writ of habeas corpus and the District Judge reversed the order of deportation. Upon appeal the Circuit Court of Appeals for the Second Circuit reversed the order of the court below.
It will be observed that the cited case possesses substantial difference in facts from the case at bar. In the cited case the crime was committed prior to any entry and the pardon was granted by the Kingdom of Italy for a crime committed there, while in the case at bar the pardon was granted to the appellee by virtue of the provisions of the Pennsylvania statute for a crime committed in Pennsylvania. In U. S. ex rel. Palermo v. Smith the court stated that the effect of a pardon in Italy in restoring credit and capacity to one there found guilty probably was not known to Congress and that such might be the reason that Congress did not provide "* * * the same exoneration for an alien convicted prior to entry into the country as is provided in the case of one who was pardoned of a crime committed after his entry into this country." The court put emphasis upon its conclusion that Congress did not intend to except cases of foreign pardon under the terms of the Statute. In Weedin v. Hempel, 28 F.2d 603, 604, the Circuit Court of Appeals of the Ninth Circuit reached a similar conclusion.
As we have stated, Malesevic made re-entry after committing a crime within the United States. His crime therefore was committed in the eyes of the law both after entry and prior to re-entry (re-entry...
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