This аppeal is from an order of the District Court dismissing the application of Sam De George, relator, for a writ of habeas corpus.
The appellant, Sam De George, in 1921, when he was 17 years of age, entered this country from Italy. In 1928 he married an American citizen, and to this marriage two children were born'. One died and the other, now 18 years of age, is а student in an American university. The relator has resided in Harvey, Illinois, for many years and has no police record in that town. A real estate man of Harvey, Illinois, wrote a letter for relator to use in his deportation hearing in' which he said that he had known the relator for twenty years, during which time the relator had always been a good сitizen “with the exception that during the prohibition days he became mixed up with bad company and violated the liquor laws.”
In 1938 on his plea of guilty the relator was sentenced for a period of 1 year and 1 day on a charge of violating § 88 of Title 18 U.S.C., 18 U.S.C.A. § 88 [now § 371]. The indictment charged a conspiracy to violate § 3321 of Title 26 U.S.C., 26 U.S.C. A. § 3321, in that the relatоr conspired to *769 remove and conceal distilled spirits with intent to defraud the United States of tax thereon. On this first sentence he served 9 months and 18 days in the penitentiary at Atlanta, Georgia. The appellant was again convicted of the same offense in 1941, and was then sentenced for a period of two years to the federal prison at Fort Leavenworth, Kansas, where he served 19 months and 18 days. It is significant to note that in his description of these two convictions the relator described them to the presiding inspector conducting the hearing for deportation as being convictions for conspiracy to violate the liquor laws.
Proceedings for his deportation were commenced in 1941, when the relator was a prisoner in the penitentiary at Fort Leavenworth. The final hearing on this proceeding was held in Chicago September 14, 1943, and the warrant for his arrest and deportation was issued January 11, 1946, pursuant to the provisions of the Immigration Act of 1917, 8 U.S.C.A. § 155(a). This section provides for thе deportation of any alien who, subsequent to May 1, 1947, is sentenced more than once to imprisonment for one year or more because of conviction in this country of any crime involving moral turpitude, committed at any time after his entry.
By his petition for a writ of habeas corpus the relator sought to be discharged from, the custody of the District Director of the United States Immigration and Naturalization Service under the writ of deportation, on the ground that the crimes for which he was sentenced did not involve moral turpitude.- This contention presents the only question involved in this appeal.
When Congress enacted this statute providing for deportation of aliens it is clear that the intent was not to provide that all aliens who were twice sentenced for more than one year for crime were to be deported. It was necessary that such sentences be for crimes involving moral turpitude. The only possible purpose Congress could have had in inserting the provision “involving moral turpitude” in this statute was to classify or describe those crimes the commission of which by an alien, if resulting in convictions and sentences, would furnish grounds for deportation.
We find many definitions of moral turpitude. Webster’s New International Dictionary, Second Edition, defines turpitude as meaning: “Foul, base. Inherent baseness or vileness of principle, words or actions; depravity.” The same dictionary defines moral turpitude as being: “The quality of a crime invоlving grave infringement of the moral sentiment of the community as distinguished from statutory
mala prohibita.”
In 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, p. 2247, moral turpitude is defined as, “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and custоmary rule of right and duty between man and man.” This Court in Ng Sui Wing v. United States, 7 Cir.,
In Volume II of Administrative Decisions under Immigration and Nationality Laws of the United States, p. 141, we find an administrative interpretation by the De *770 partment then' having the administration of the Act. In an opinion on a deportation proceeding decided by the Board June 26, 1944, and approved by the Attorney General July 12, 1944, the following statement from an opinion by the Solicitor of the Department of Labor was quoted with approval: “A crime involving moral turpitude may be either a felony or misdemean- or, existing at common law or created by statute, and is an act or omission which is malum in se and not merely malum prohibitum; which is aсtuated by malice or committed with knowledge and intention and not done innocently or with inadvertence or reflection; which is so far contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected, or is deprived of sоcial recognition by good living persons; but which is not the outcome merely of natural passion, of animal spirits, of infirmity of temper, of weakness of character, of mistaken principles, unaccompanied by a vicious motive or a corrupt mind. (Italics supplied.)”
From the above definitions, legislative history and administrative interpretation, it seems perfectly obvious that Congress in describing crimes which would furnish а ground for the deportation of aliens had something more in mind than the mere violation of a statutory law. The limitation, “involving moral turpitude”, must be taken as meaning that Congress intended to include in the classification only such infamous crimes as would grievously offend the moral code of mankind, such trimes as would have this effect even in the absence of any prohibitive statute.
As support for its contention that the crimes here in question involved moral turpitude, the government relies principally on three decisions: Guarneri v. Kessler, 5 Cir.,
In Guarneri v. Kessler, supra, the Court found that a conspiracy to smuggle alcohol, intended for beverage purposes, into the United States with intеnt to defraud the United States in violation of the Tariff Act of 1930, constituted a crime involving moral turpitude. The Court there defined moral turpitude very broadly as being,
In pointing out that smuggling was a crime at common law the Court was apparently bolstering its holding that the crime there being considered involved moral turpitude. We think the common concept of those who engage in smuggling as a business is that they are dangerous criminals, criminals who would use any force or violence necessary to meet the dangers with which the business оf smuggling is fraught.
In U. S., ex rel. Berlandi v. Reimer, supra, the Court held that the same crime which we are considering in the instant case did involve moral turpitude. There also the relator conspired to violate the internal revenue laws by depositing and concealing distilled spirits with intent to defraud the United States of the taxes imposed thereon. The Cоurt said,
The only other decision by a United States Court of Appeals holding that dealing with alcohol with intent to defraud the United States of the tax thereon constituted a crime involving moral turpitude is
*771
Maita v. Haff, 9 Cir.,
We find ourselves unable to agree with the holding in these two decisions.
In the case at bar the relator and others were twice apprehended operating an illicit still and distributing alcohol on which the tax had not been paid. In the Berlandi case the Court pointed out that before the repeal of the 18th Amendment prosecutions under the internal revenue statutes “were but alternatives for prosecutions under the Volstead Act,” and convictions under the various statutes might have been treated alike so far as any question of moral turpitude was concerned. By that language the Court conceded that while prohibition was in' effect a defendant on the same' set of facts could have been either prosecuted under the Volstead Act or under the internal revenue laws, and that the violation of either law would have been held to involve moral turpitude. The Court supported its holding in the Berlandi case that after repeal, a violatiоn of the internal revenue laws by evading payment of the excise tax on liquor involved moral turpitude by arguing that prior to repeal the manufacture and sale of liquor was unlawful ; that paying tax thereon would not make it lawful; and that therefore there would be no specific intent to defraud the government, “but only a general purpose to disregard the prohibition laws.” But, the Court said,
The relator here would have been found guilty of the two crimes for which he was convicted and sentenced on proof of his having with others manufactured and sold the liquor without the payment of tax, whatever his specific purpose might have been. He would still have been found guilty if he had never heard of the requirement of payment of tax оn the liquor involved. It is evident from his testimony before the Immigration Inspector that the relator thought he had been convicted of conspiracy to violate the liquor laws, not the internal revenue laws. The record indicates that he had been guilty of violating the liquor laws during prohibition. The courts almost uniformly held that such violations did not involvе moral turpitude. Bartos v. U. S. District Court, 8 Cir.,
Judge Maris of the United States Court of Appeals for the Third Circuit, in U. S. ex rel. Manzella v. Zimmerman, D.C.E.D.Pa., 71 Supp. 534, 537, held that breaking prison and escaping did not involve moral turpitude within the meaning of the Immigration Act. The indictment there alleged that the alien “did break prison and escaped ‘with force and arms.’ ” The Court рointed out, however, that in - determining whether a certain crime involves moral turpitude we must consider “the inherent nature of the crime under any and all circumstances,” and that “the proper test is to consider whether a prison breach accomplished by the least imaginable force * * * for example, by prying open the bars of a window or forcing the lock of a door”, would constitute a crime involving moral turpitude. The Court concluded that in view of the fact that the crime of prison breach could be committed under such circumstances, “I cannot say that the action of an escaping prisoner involves that element of baseness, vileness or depravity which has been * * * necessarily in *772 herent in the concept of moral turpitude.” If we apply this reasoning to the ground on which the Court based its opinion in the Berlandi case, it would seem that the crime there under consideration should not have been held to have involved moral turpitude.
But, if we adopt the reasoning of the Court in the Berlandi case and say that the purpose and specific intent of the relator there, after the repeal of Prohibition, was necessarily to evade taxes, rather than to satisfy the demand for liquor, we still are of the opinion that the crime should not be held to involve moral turpitude within the meaning of § 155 of thе Immigration Act. We agree with the thought expressed in the dissenting opinion of Judge Learned Hand in the Berlandi case,
In United States v. Carrollo, D.C.W.D.Mo.,
A statute authorizing deportation should be most strictly construed. In Fong Haw Tan v. Phelan,
. “We resolve the doubts in favor of that construction (a liberal construction) because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael,332 U.S. 388 ,68 S.Ct. 10 ,92 L.Ed. 17 . It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provisiоn less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”
If we follow this rule of construction we must hold that crimes involving moral turpitude, as those wоrds are used in § 155 of the Immigration Act, were intended to include only crimes of violence, or crimes which are commonly thought of as involving baseness, vileness or depravity. Such a classification does not include the crime of evading the payment of tax on liquor, nor of conspiring to evade' that tax.
The judgment of the District Court is reversed and the cause remanded with instructions to enter an order discharging the relator.