Tillinghast v. Edmead, 2307.
| Decision Date | 18 February 1929 |
| Docket Number | No. 2307.,2307. |
| Citation | 31 F.2d 81 |
| Parties | TILLINGHAST, Immigration Com'r, v. EDMEAD. |
| Court | U.S. Court of Appeals — First Circuit |
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellant.
John T. Lane, of Boston, Mass., for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
This is an appeal from a decree of the District Court for Massachusetts granting the petition of the appellee for a writ of habeas corpus and ordering her discharged from the custody of the Commissioner of Immigration at Boston, by whom she was held for deportation.
The appellee, Phyllis Edmead, is a woman 23 years of age, born in the British West Indies. She arrived in this country on or about the 22d of April, 1924, and was lawfully admitted. She engaged in domestic service, and, while so employed by one Annie I. Dale, was, on the fifth day of March, 1927, arrested on a warrant, issuing out of the municipal court of the Roxbury district, charged with the larceny of "certain moneys of the amount and of the value of fifteen (15) dollars." Thereafter, on the 7th day of March, 1927, she pleaded guilty to the charge and was sentenced to be committed to the Reformatory for Women at Framingham. From this sentence she appealed to the superior court for the county of Suffolk. On April 11, 1927, she was sentenced in that court for the above-named offense to confinement in the county jail for the term of one year. September 18, 1927, an application for a warrant of arrest under section 19 of the Act of February 5, 1917; 8 USCA § 155, was made to the Department of Labor, and, on September 27, 1927, a warrant of arrest was issued wherein it was charged that the appellee had been found in the United States in violation of the Immigration Act of February 5, 1917 (39 Stat. 874), for the following reason:
"That she had been sentenced, subsequent to May 1, 1917, to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, to wit, larceny, committed within 5 years after her entry into the United States at Boston, Massachusetts, about April 23, 1924."
November 9, 1927, she was taken into custody under the warrant and accorded a hearing before an immigration inspector at Boston. A report of the hearing was made to the Department of Labor sustaining the allegations of the warrant; and the Assistant Secretary of Labor, after inspection of the report, being satisfied that the appellee had been found in the United States in violation of the Immigration Act of February 5, 1917, on November 22, 1927, issued a warrant of deportation ordering the appellee to be returned to the country from whence she came. Thereafter the appellee filed this petition for a writ of habeas corpus and, the case having been heard, the court on June 11, 1928, ordered the writ to issue and that the petitioner be discharged. This appeal was taken therefrom.
The District Court took jurisdiction on the ground that the immigration tribunals proceeded upon a fundamental error of law in that they ruled that one convicted of the crime of larceny was as a matter of law convicted of a crime involving moral turpitude. It held that while some crimes are of such character as necessarily to involve moral turpitude, others might or might not; that as to the latter class it was a question of fact to be determined by the circumstances; that, while there was authority that all larceny involved moral turpitude it was of the opinion that petit larceny did not necessarily, and that the circumstances must be inquired into to determine whether moral turpitude was shown.
The provisions of law under which the proceeding was had and the deportation ordered are found in section 19 of the Act of February 5, 1917 (39 Stat. 889 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼ jj), the portions of which here material read as follows:
There is no evidence or finding in the case that the alien, Edmead, has been pardoned for the crime in question, or that the court or judge sentencing her for such crime, at the time of imposing judgment or passing sentence or within 30 days thereafter, made recommendation to the Secretary of Labor that the alien should not be deported in pursuance of the act.
Gen. Laws Mass. c. 266, § 30, provides:
"Whoever steals, * * * the money or personal chattel of another, * * * shall be guilty of larceny, and shall, if the value of the property stolen exceeds one hundred dollars, be punished by imprisonment in the state prison for not more than five years or by a fine of not more than six hundred dollars and imprisonment in jail for not more than two years, or if the value of the property stolen does not exceed one hundred dollars, shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars."
Stealing is defined as "the criminal taking, obtaining or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it. * * *" Gen. Laws Mass. c. 277, § 39.
As the crime of which the alien was convicted in the state court was the larceny of money of a value less than $100, the crime of which she was convicted was petit larceny and a misdemeanor within the meaning of the above provisions of law; and the jurisdiction of the District Court depends upon...
To continue reading
Request your trial
-
Jordan v. De George
...guide 'moral turpitude' is in relation to the enforcement of the Act of 1917, can be shown by three pairs of cases: (1) In Tillinghast v. Edmead, 31 F.2d 81, 85, the First Circuit, over a pungent dissent, held that a conviction for petty larceny by an 'ignorant colored girl' working as a do......
-
Da Rosa Silva v. I.N.S.
...of small sum of money and personal apparel during Nazi regime in Germany involves moral turpitude); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir.1929)(larceny of fifteen dollars involves moral turpitude); Wilson v. Cam 41 F.2d 704 (9thCir.1930)(petit larceny involves moral turpitude); Pino v.......
-
Silva v. Immigration & Naturalization Service, 02-CV-8903 (E.D. Pa. 5/__/2003)
...1960) (larceny of small sum of money and personal apparel during Nazi regime in Germany involves moral turpitude); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (larceny of fifteen dollars involves moral turpitude); Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930) (petit larceny involves mor......
-
Tseung Chu v. Cornell
...F.2d 231 (lewdness); United States ex rel. Allessio v. Day, 2 Cir., 1930, 42 F.2d 217 (manslaughter and counterfeiting); Tillinghast v. Edmead, 1 Cir., 1929, 31 F.2d 81 (larceny); United States ex rel. Medich v. Burmaster, 8 Cir., 1928, 24 F. 2d 57 (concealing assets belonging to trustee in......
-
Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness
...a CIMT, whereas theft with intent to deprive the owner of his rights for a temporary period is not a CIMT); see also Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929) (reasoning that either misdemeanor or felony theft is a CIMT because "theft or larceny was a crime at common law involvi......
-
"Crimes Involving Moral Turpitude": The Constitutional and Persistent Immigration Law Doctrine.
...how a "thing" can be a felon but is nonetheless impressed by the comprehensiveness of the denunciation. (71.) Tillinghast v. Edmead, 31 F.2d 81, 82 (1st Cir. (72.) Id. at 83. (73.) Id. at 84 (Anderson, J., dissenting). (74.) See, e.g., Andreacchi, 38 F.2d at 499; Ex parte Saraceno, 182 F. 9......
-
Tcl - Immigration Consequences of Criminal Pleas and Convictions - October 2006 - Immigration Law - a Primer
...Coykendall v. Skrmetta, 22 F.2d 120 (C.C.A. 2 1927). 31. Id., citing 39 Ops. Atty. Gen. 95, 96. 32. Id., citing Tillinghast v. Edmead, 31 F.2d 81 (C.C.A.1 1929); United States ex rel. Rizzio v. Kenney, 50 F.2d 418 (D.C.Conn. 1931). 33. INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227(a)(2)(A)(I) (emp......