United States ex rel. Robinson v. Day
Decision Date | 07 July 1931 |
Docket Number | No. 419.,419. |
Citation | 51 F.2d 1022 |
Parties | UNITED STATES ex rel. ROBINSON v. DAY, Commissioner of Immigration. |
Court | U.S. Court of Appeals — Second Circuit |
Edwin L. La Crosse, of New York City, for appellant.
Morton Baum, of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Robinson, the relator, entered the United States from Canada in 1920 and stayed here till February, 1929, when he made a short trip to his home. He re-entered on February 7, 1929, and in the following May was indicted for forgery in the second degree in the Court of General Sessions of the City of New York. He pleaded guilty to the crime of forgery in the third degree, and was sentenced to state's prison for not less than one year and six months, and not more than two years and six months; "the said sentence to remain wholly unexecuted as long as the defendant continues to contribute eight dollars a week towards the support of his child by his marriage with Angelina D. Scorpa." He was never imprisoned, as he continued to make the required payments, but he was arrested for deportation in August, 1929, and ordered deported as an alien who had been sentenced to a term of imprisonment of more than one year. He sued out a writ of habeas corpus which the District Judge dismissed, and now appeals from the order.
Forgery in all its degrees, as defined by the Penal Code of New York (Penal Law, § 880 et seq.), involves an intent to defraud, and is thus a crime of moral turpitude. Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. U. S. ex rel. Mylius v. Uhl, 210 F. 860 (C. C. A. 2); Howes v. Tozer, 3 F.(2d) 849 (C. C. A. 1); U. S. ex rel. Castro v. Williams (D. C.) 203 F. 155; U. S. ex rel. Griffo v. McCandless (D. C.) 28 F.(2d) 287. Conversely, when it does, no evidence is competent that he was in fact blameless. Tillinghast v. Edmead, 31 F.(2d) 81, 82 (C. C. A. 1). In that case he is remitted to a pardon or to the recommendation of the judge at the time of sentence. We are therefore confined to considering whether the relator was "sentenced to imprisonment for a term of one year or more."
Formally indeed he was; the sentence so read. Actually he never was, because he was not to be imprisoned unless he defaulted in the weekly payments to his child. The sentence was absolute; the imprisonment was conditional. It is the sentence which marks the gravity of the offence; through it the statute takes account of the particular circumstances, which it ignores in making the definition of the crime conclusive. The notion is that the judge, in the light of all the surroundings, must appraise the alien's conduct as deserving a year's imprisonment, and must impose it. It is not enough that the crime necessarily involves immoral conduct; it must be heinous enough to require punishment in prison. If the sentence be out and out suspended, obviously that condition is not fulfilled; he may never be imprisoned at all. If it be imposed, but execution conditionally suspended, the same is true; for the punishment is only held in terrorem to insure...
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