United States v. Zimmerman, M — 1204.
| Decision Date | 01 April 1947 |
| Docket Number | No. M — 1204.,M — 1204. |
| Citation | 71 F. Supp. 534 |
| Parties | UNITED STATES ex rel. MANZELLA v. ZIMMERMAN, District Director of Immigration and Naturalization. |
| Court | U.S. District Court — Western District of Pennsylvania |
Sabato Bendiner, of Philadelphia, Pa., for plaintiff.
James P. McCormick, Asst. U. S. Dist. Atty., and Maurice A. Roberts, Immigration and Naturalization Service, both of Philadelphia, Pa., for defendant.
The relator is an alien, a native and citizen of Italy, who was lawfully admitted to the United States for permanent residence on September 8, 1922. On April 1, 1935, he was indicted in Lehigh County, Pennsylvania, on charges arising out of a bank robbery which occurred on January 11, 1935. He was not immediately apprehended. On or about August 1, 1935, he went on a picnic from Detroit to an island in the Detroit River on the Canadian side of the international boundary line. He returned to Detroit on the same day. The relator was arrested in August, 1935, upon the indictment pending in Lehigh County, Pennsylvania, and was extradited to that county and placed in the county jail.
On September 20, 1935, he escaped from the Lehigh County jail where he was being detained pending trial on the bank robbery charge but was shortly thereafter recaptured. On September 24, 1935, he was indicted for breaking prison and escaping. On the same day he was arraigned upon both indictments, pleading not guilty to the bank robbery indictment and guilty to the indictment for prison breach. He was tried and convicted on the bank robbery charge and on September 25, 1935 was sentenced upon that charge, and also upon the prison breach charge, the latter sentence to commence at the expiration of the first one.
On June 16, 1936, a warrant for the arrest of the relator under the immigration laws was issued by the Assistant to the Secretary of Labor. After a hearing before an immigrant inspector the Assistant to the Secretary of Labor found the relator deportable under Section 19 of the Immigration Act of 1917, 8 U.S.C.A. § 155, on the ground that he had been sentenced to imprisonment for a term of one year or more because of conviction of a crime involving moral turpitude committed within five years after his re-entry into the United States from the island in the Detroit River on August 1, 1935. A warrant for his deportation was issued in 1938, execution of which was deferred until his release from state imprisonment. On March 20, 1947, the relator was released from the Eastern State Penitentiary of Pennsylvania on parole and was taken into custody by the respondent for deportation under the warrant previously issued. The relator thereupon sued out the present writ of habeas corpus.
The relator asserted in his petition for the writ that his re-entry into the United States from the Canadian island in the Detroit River in 1935 did not constitute an entry within the meaning of the deportation statute. However, he did not press that point at the hearing and it must in any event be decided against him. United States ex rel. Volpe v. Smith, 1933, 289 U. S. 422, 53 S.Ct. 665, 77 L.Ed. 1298; United States ex rel. Santarelli v. Hughes, 3 Cir., 1940, 116 F.2d 613.
The ground upon which the relator now insists that the warrant of deportation issued against him is invalid and that he is, therefore, entitled to be released from custody, is that the crime of prison breach and escape which he committed within five years after his re-entry in 1935, is not a crime involving moral turpitude within the meaning of the Immigration Act. Section 19 of that act, as amended,1 provides that "any alien who * * * is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, * * * shall, upon the warrant of the Attorney General, be taken into custody and deported."
It follows, as indeed the respondent admits, that if the crime of which the relator was convicted did not involve moral turpitude the warrant of deportation was improperly issued and he is entitled to be discharged. My inquiry, therefore, is whether the crime of which the relator was convicted did involve moral turpitude.
It is settled that in determining this question the court is confined to the record and may not consider the particular circumstances under which the crime was committed. The question is whether the inherent nature of the crime as defined by law and particularized in the indictment necessarily involves moral turpitude.2 Accordingly the relator's allegation that his escape was in fact accomplished without force but merely by walking through an open door is immaterial. I, therefore, turn to the Pennsylvania Act of March 31, 1860, P.L. 382, Section 3, under which the relator was indicted, in order to consider the inherent nature of the crime which it defines. Its relevant provisions are as follows:
"Section 3. If any person arrested and imprisoned, charged with an indictable offence, shall break prison, or escape, or shall break prison, although no escape be actually made, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding two years, if the criminal charge on which such person stood committed, was a crime or misdemeanor punishable on conviction, by imprisonment by separate or solitary confinement at labor; or to imprisonment not exceeding one year, if such charge was a crime or misdemeanor punishable on conviction, by simple imprisonment without labor; * * * It will be observed that the Pennsylvania statute comprehends two distinct acts which it denounces as criminal: breaking prison and escape. Neither prison breach nor escape are defined in the statute and so must be construed in the light of their common law use. 3 Sutherland Statutory Construction, 3rd Ed., § 5303. At common law the crime of escape is committed by a prisoner...
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