S
Carrying a concealed and deadly weapon with intent to use against the рerson of another in violation of section 616.41, Minnesota Statutes (Annotated—1957), is a crime involving moral turpitude.
BEFORE THE BOARD
Discussion: This case is before us by certification. The respondent is a 19-year-old unmarried male alien, a native of the Ukraine (Soviet Union) alleged to be stateless, who last entered the United States on April 6, 1957. Following expulsion hearing, a special inquiry officer on March 10, 1959, rendered an oral decision in which he directed deportаtion on the charge in the order to show cause. Subsequently, upon further consideration of the pertinent issue of deportability, he prepared a decision on March 30, 1959, in which all of the pertinent points relating to the grounds for deportation have been carefully and thoroughly discussеd. It has been decided that the allegations in the order to show cause are established by documentary evidence in the record and the рertinent law applicable thereto. The case has been certified to the Board for review. The question of deportability is the only issue before us.
Deportability is predicated on documentary evidence which shows that the respondent pleaded guilty to a criminal chargе (an information) on October 28, 1958, which set forth that he had committed the crime, carrying a concealed weapon, in violation of
* * * then and there being, did willfully, unlawfully, wrongfully and knowingly cаrry, conceal and have in his possession and on his person, with intent to use against the person of one J—— C—— C——, a certain dangerous weapon, to wit: a .38 caliber pistol commonly called a revolver, a more particular description of said revolver being to me unknown, said revоlver being then and there loaded with gunpowder and leaden bullets, the said Y— S— not then and there being a public officer * * *.
Respondent was convicted in District Court, Fourth Judicial District, Hennepin County, Minnesota, and sentenced on December 3, 1958, for the term of one year, “Defendant to be parolеd after serving 6 months with 41 days time off for time served in County Jail.”
Although the case is submitted without argument or brief, the respondent challenges the finding that he has been sеntenced to a term of “one-year or more” within the meaning of
The applicable provision of law in the Minnesota Statutes (Annotated), defining and specifying the elements of the crime committed by the respondent, and the statute under which he was convicted, is
Every person who shall manufacture, or cause to be manufactured, sell, keep for sale, offer, or dispose of, any instrument or weapon of the kind usually known as a slung-shоt, sandclub, or metal knuckles; or who shall attempt to use against another, or with intent so to use, shall carry, conceal, or possess, any of thе weapons hereinbefore specified, or any dagger, dirk, knife, pistol, or other dangerous weapon, shall be guilty of a gross misdemeanor. Thе possession by any person, other than a public officer, of any such weapon concealed or furtively carried on the person shall be presumptive evidence of carrying, concealing, or possessing with intent to use the same.
The punishment or penalty for crimes committed in violation of the aforementioned statute (gross misdemeanors), is set forth in
Whoever shall be convicted of a gross misdemeanor for which nо punishment is prescribed by any statute in force at the time of conviction and sentence shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than $1,000.
First, we will briefly review the elements of the offense herein involved and considered whether such crime is one having the elements of moral turpitude. In other words, we will determine by review whether there is a basis for action other than that which has been taken by the special inquiry officer.
Concisely, the overt acts that are the basis for the alien‘s conviction are contained in the informatiоn to which the respondent en
The weapon in the instant case was a revolver, loaded, which has been held to be a dangerous weapon; and the shooting of a person has been held to be a crime involving moral turpitude (United States ex rel. Morlacci v. Smith, 8 F.2d 663). Nor can it be disputed that the use of a dangerous weapon against the person of another is motivated by an evil, base, and vicious intent. The essence of the offense is the carrying of the dangerous weapon with a base, evil and vicious intent to injure another (State v. Simon, 163 Minn. 317). The intent to commit an offense having the elements of moral turpitude has the same elements as the offense (United States ex rel. Meyer v. Day, 54 F.2d 336). The special inquiry officer, after thorough consideration of the issue, has reached the conclusion that carrying a concealed weapon with intent to use it against the person of another is a crime involving moral turpitude. We concur in that decision.
The sentence of the respondent to imprisonment for the term of one year satisfies the provisions of
Respondent has complained that he was not represented by counsel at the time of his appearance and arraignment before the State Court in the criminal trial. While the matter of legal reprеsentation at the time of court trial and conviction is not a matter for our consideration, we observe that the court record shows the rеspondent did have legal representation.
In view of the foregoing findings and conclusions, and our review of the record in the case, the deсision of the special inquiry officer will be affirmed. The respondent may be able to apply for an executive pardon to relieve him frоm deportation.
Order: It is ordered that the decision of the special inquiry officer be affirmed.
Notes
(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more * * *.