IN THE MATTER OF J

In EXCLUSION Proceedings

A-7274029

Decided by Board March 10, 1950

Crime involving moral turpitude-Bodily injury in violation of section 223 (a) of the German Criminal Code (1948).

Bodily injury in 1948 in violation of section 223 (a) of the German Criminal Code by assault with a knife (as in this case) is not equivalent to assault with a dangerous weapon in Anglo-American law (malice is not a characteristic of the crime), but is in fact simple assault and hence does not involve moral turpitude.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Admits commission and was convicted of a crime, to wit: Assault with a weapon (knife).

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated October 6, 1949, directing that the excluding decision of the board of special inquiry be affirmed. Appellant, a 26-year-old displaced person who is a native and citizen of Lithuania, seeks admission for permanent residence. Appellant is single and is destined to his cousin in Chicago, who has been living in the United States since about 1933.

Appellant was arraigned before the United States Military Government Court (11th Judicial District) at Kitzingen, Germany, for causing bodily harm to a German citizen by stabbing him with a knife; he pleaded not guilty to this charge of fighting with a German, but was found guilty and sentenced to 10 months in prison. He served 4 months of his sentence, the remainder being suspended for good behavior. During the hearing, appellant was asked to comment upon this record of conviction. He testified that he was going home. alone late on the night of June 28, 1948, from a dance and was attacked by three Germans. Since he was alone and in a strange country, he had no choice but to defend himself; so he used his pocketknife with a blade approximately 3 inches long as a defense. Appellant stated that the reason he was thus attacked was that during the evening he

had danced with a girl whom one of the Germans liked. (This altercation took place at Selingerstadt, Germany. It will be noted that since appellant was a displaced person, his position was at all times a precarious one for he was regarded by the Germans as an intruder in their midst.)

Pertinent sections of the German Criminal Code provide as follows: Bodily Injury.

Light Bodily Injury.-Leichte Koerperverletzung.

Section 223.-Whoever intentionally1illtreats (misshandelt) the body of another or injuries the health of another shall be punished for bodily injury by imprisonment not to exceed three years or by fine.

If the act is committed against the relative in an ascending line imprisonment for not less than one month shall be imposed.

Dangerous Bodily Injury.—Gefaehrliche Koerperverletzung

Section 223 (a).

If bodily injury is committed by means of a weapon, and in particular a knife or other dangerous instrument or by means of a treacherous surprise (hinterlistringr ueberfall) or by several persons acting together (gemeinschaftlich) or by ill treatment dangerous to life, the punishment shall be imprisonment for not less than two months.

(Translation supplied by the District Attorney of the United States Military Government Courts for Germany, First Judicial District.)

Section 223 defines the offense of light bodily injury as an act in which the least amount of bodily injury occurs. The sections of the Code progress from this minimum through the more aggravated forms of bodily injury; section 224 deals with serious bodily injury, while section 225 states that a specific intent to inflict serious injuries is necessary for conviction under section 224. Section 223 (a) is based on the definition of the offense in section 223 and merely provides for a minimum punishment of 2 months within the framework of the maximum possible sentence of 3 years, which is set out in section 223 proper. Simple assault has generally been held as not necessarily involving moral turpitude, for it may be committed without the evil intent or depraved motive associated with moral turpitude. For similar reasons, aggravated assault where the use of a deadly or dangerous weapon is not an element is not regarded as involving moral turpitude (U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933); U. S. ex rel. Griffo v. McCandless, 28 F. (2d) 287 (E. D. Pa., 1928); U. S. ex rel. Morlacci v. Smith, 8 F. (2d) 663 (W. D. N. Y., 1925); Ciambelli ex rel. Maranci v. Johnston, 12 F. (2d) 465 (D. Mass. 1926)). Conversely, assaults with intent to murder (Clark v. Orabona, 59 F. (2d) 204 (E. D. Pa., 1930)), to kill (U. S. ex rel. Shladzien v. Warden, 45 F. (2d) 204, E. D. Pa., 1930), and to rob (U. S. ex rel. Rizzio v. Kenney,

1The use of the German equivalent of "intentionally" is employed here merely to differentiate this offense from the one defined in sec. 230-Bodily Injury Resulting from Negligence.

50 F. (2d) 418 (N. D. Conn., 1931)), have been held to indicate the depraved motive which is requisite for moral turpitude. In order for statutory crime to involve moral turpitude, a specific intent must accompany the act (Weedin v. Yamada, 4 F. (2d) 455 (C. C. A., 9, 1925)). Such is not the case in the German statute before us, for the offense defined in section 223 (a) is merely mala prohibita and not inherently base.

The crime involved in the instant case is not equivalent to assault with a dangerous weapon in Anglo-American law. Malice is not a characteristic of the crime since one may be convicted even though his acts were the result of innocent motivations. For example: The accidental hitting of another in the course of ordinary activity, by chance or in fun; the inadvertent striking by one who is unwittingly caught alone in an affray; the instinctive striking of another is selfprotection, when the victim of a surprise attack. The latter happening describes the situation before us. Therefore, we conclude that the crime involved is in fact simple assault and hence does not involve moral turpitude (Matter of M- S- A-6450220 (April 16, 1947); Matter of E-, 56065/307 (July 28, 1943)). For this reason, the ground for appellant's exclusion is not sustained.

2

Order: It is hereby ordered, That the alien be admitted to the United States for permanent residence.

'See also: Matter of O-, A-5912688 (March 29, 1948) (3, I. & N. Dec. 193); Matter of G- R, A-4569802 (Atty. Gen. May 29, 1947) (2, I. & N. Dec.

733).

IN THE MATTER OF R

In STATUS DETERMINATION Proceedings

A-4412166

Decided by Central Office March 10, 1950

Citizenship Status of a Native of Puerto Rico (1895)—Child born of “alien” parents there-Opting by parents in name of child for Spanish nationalitySuch child to signify election within one year of attaining majority-article 18 and article 19, Spanish Civil Laws of 1889-Acquisition of Spanish nationality by denizenship-Article 17, Spanish Civil Laws of 1889-Evidence-Doubt as to citizenship status-Eligibility to file a declaration of intention pursuant to section 322 of the Nationality Act of 1940.

(1) A child, born in Puerto Rico (in 1895), of “alien" parents is eligible to file a declaration of intention pursuant to section 322 of the Nationality Act of 1940, if the evidence leaves her citizenship in doubt.

BEFORE THE CENTRAL OFFICE

Discussion: The question presented is whether petitioner has established that she was born in Puerto Rico of alien parents, so as to be eligible to file a declaration of citizenship pursuant to the provisions of section 322 of the Nationality Act of 1940.

The record discloses that petitioner's father was born in Hamburg, Germany, in 1859, that he arrived in Puerto Rico on December 31, 1883, that he was engaged in the business of a merchant and also a banker while in Puerto Rico, that he was married to subject's mother on July 14, 1888, in Puerto Rico and that he resided there until the date of his death in July 1941. Petitioner's mother was born in Puerto Rico on 1866 of a Spanish father. Petitioner was born in San Juan, P. R., on June 28, 1895.

Petitioner has testified that her father was German consul in San Juan during the Spanish-American War in 1899, that he was named consul because he was one of the very few Germans living there at the time, that she did not believe that he was the consul at the time of her birth and that she didn't think that she was considered a Spanish subject by virtue of her birth in Puerto Rico in 1895. The record discloses that petitioner's father was naturalized as a United States citizen on January 29, 1923, by the District Court of the United States for the

District of Puerto Rico at San Juan, and that petitioner's mother was naturalized as a United States citizen on October 18, 1943, by the same court.

In order to be eligible to the provisions of section 322, petitioner must establish that she was born in Puerto Rico of alien parents. If she was born in Puerto Rico of Spanish subjects, she may have a claim to United States citizenship pursuant to the provisions of the act of April 12, 1900, and the act of March 2, 1917. It is, therefore, pertinent to inquire into the provisions of Spanish law which were in effect at the time of her birth.

The Spanish Civil Laws of 1889 provided in part as follows (Flournoy and Hudson, Nationality Laws, p. 537) :

Article 17. The following are Spaniards:

(1) Persons born in Spanish territory.

(2) The children of a Spanish father or Spanish mother, although born outside Spain.

(3) Aliens who have obtained a certificate of naturalization.

(4) Aliens, who, without such certificate, have acquired a denizenship (vecindad) in any town (pueblo) of the monarchy law of October 2, 1877, 12 to 16.

Article 18. Children, while they remain under the parental power (patria procestad) take the nationality of their parents.

In order that children born of alien parents in Spanish territory may enjoy the benefits accruing to them under clause I of Article 17, it shall be incumbent upon their parents to signify in the manner and before the officials specified in Article 19 that they opt in the name of their children for Spanish nationality, renouncing all other.

Article 19. The children of an alien born in the dominions of Spain shall signify within one year after attaining their majority or emancipation whether they desire to enjoy the rights of Spaniards granted to them by Article 17.

The record fails to disclose that petitioner's parents signified in any manner that they opted in the name of petitioner for Spanish nationality or that petitioner signified within 1 year after attaining her majority or emancipation that she desired to enjoy the rights of Spaniards granted by article 17. In view thereof, it does not appear that petitioner acquired Spanish nationality under the provisions of section I of article 17. While petitioner's mother was Spanish at birth, since she was married prior to petitioner's birth, the nationality of petitioner's mother followed that of petitioner's father, inasmuch as article 22 of the same Civil Laws provided that "A married woman shares the condition and nationality of her husband." Whether or not petitioner acquired Spanish citizenship under the provisions of section 2 of article 17 of the Civil Laws of 1889 would, therefore, depend upon the nationality of her father, which will be discussed later. There is no record of any naturalization as Spanish citizens either by petitioner or her parents and, therefore, there was no acquisition