2 years are inadmissible to the United States. (See opinion of general counsel, Immigration and Naturalization Service, dated May 11, 1950.)

In the F opinion the general counsel of the Immigration and Naturalization Service found that while it would appear that the I. R. O. has broad enough powers in its constitution to engage in the business of transportation, so that it could be considered a "transportation line" or a "transportation company" within the meaning of the immigration statutes mentioned, it has never in fact operated as a transportation line or company; that on the assumption that the vessel which brought F to Canada was a United States Army transport through arrangements with the I. R. O., the conclusion was reached that Mrs. F― would be admissible to the United States notwithstanding the provisions of the immigration law in question. The factual situation in the B case is different from that which obtained in the P- case and which obtains in the H

case now

before us. In the B case, B was brought to Canada on a ship operated by Great Britain and he was brought to Canada as an internee. While the then Attorney General held that B- would be held inadmissible under the immigration statutes in question so long as he remained in status quo; namely, as an internee, a subsequent observation was made that to hold the statutes (sec. 17, Immigration Act of 1924, and sec. 23, Immigration Act of 1917) inapplicable to aliens brought to foreign contiguous territory by vessels operated by foreign governments would tend to defeat these purposes. This observation was indicated in the letter addressed to the Secretary of State on June 2, 1942. While the observation was not a formal opinion, we see no conflict in the B- holding by the Attorney General and the holding by the Board in the P case. Nor for that matter does the B- -case create any obstacle to a conclusion in the case now before us similar to that reached in the P― case.

In the case of J— H—, now before us, it is established that the alien was brought to Canada on a United States Army transport through the auspices of the I. R. O.; that the use of the Army transports by the I. R. O. is pursuant to an understanding whereby such ships have been so allocated and that the Army supplied the vessels and crews which are under the constant supervision of the Army and that the I. R. O. merely supplies the displaced person to be transported and pays for the voyage on a cost basis.

"The personal factors in P— and H- cases are substantially the same. Each intended to remain in Canada. Each was brought to Canada under similar circumstances. In the H-case the transportation medium is clearer; namely, that the vessel was owned and operated by the United States Government through the Department of the Army. While the same may have been true in the case of P, the point was not fully developed in the record.

It is quite clear that the vessel which brought H

to Canada was one operated and under complete control of an agency of the United States; namely, the Department of the Army, and as such could not be held amenable to any of the penalties of the immigration laws. Nor, it follows, is there any basis upon which the application of section 17, Immigration Act of 1924, and section 23, Immigration Act of 1917, could be predicated.

Order: It is ordered that the appeal be sustained and the alien be admitted to the United States for permanent residence upon presentation of required documents.

For the reasons indicated above, this case is certified to the Attorney General for review of the Board's decision in accordance with section 90.12, title 8, Code of Federal Regulations.

BEFORE THE ACTING ATTORNEY GENERAL

(August 17, 1951)

The decision and order of the Board of Immigration Appeals dated March 6, 1951, are hereby approved.

Editor's note.-Interim Decision #57 has been considered in the above decision, and the letter of Attorney General Biddle dated June 2, 1942, to the State Department in the case of HB has been discussed, too. The legal adviser of the State Department has been advised by the Deputy Attorney General of the conclusion reached in the above decision and it was suggested that State Department Visa Circular No. 128 be revoked or appropriately revised. Accordingly, the Important Notice dated January 17, 1950, in re Interim Decision #57 will be disregarded. The observations of Attorney General Biddle in the above letter of June 2, 1942, as to vessels operated by foreign governments were noted in this Board's decision in two places and in view thereof the question as to "foreign government vessels" is considered open.

IN THE MATTER OF B

In DEPORTATION Proceedings

A-7203906

Decided by Board March 12, 1951

Crime involving moral turpitude-Drawing check without credit (1940, Ohio)— Fraudulent check (1948, Indiana).

(1) An offense under section 710-176 of the Ohio General Code (entitled, "Drawing a Check Without Credit") involves moral turpitude, since intent to defraud is an essential thereof.*

(2) An offense under section 10-2105 of the Indiana statutes (entitled “Fraudulent Checks") involves moral turpitude, since intent to defraud is an essential thereof.*

CHARGE:

Warrant: Act of -917-Sentenced more than once, to wit: Issuing check against insufficient funds and issuing check with. out funds.

BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated September 19, 1950, directing respondent's deportation on the above charge.

Respondent is a 51-year-old native of Yugoslavia (formerly Austria), probably now stateless, who last entered the United States in 1910 or 1911. He has resided in this country continuously since that time.

Respondent is married to a native-born United States citizen who is living in Vincennes, Ind., with their four citizen children. Respondent's testimony reveals that he deserted from the United States Army in 1916 and has never obtained any subsequent discharge from service.

The record shows that respondent has been convicted twice for violations of so-called "cold check" statutes. On March 29, 1940, respondent was charged by indictment with an offense under section 710-176 of the Ohio General Code (entitled, "Drawing a Check Without Credit") in the Court of Common Pleas, Hamilton County, Ohio.

*Editor's note.-For parallel statutes see footnote No. 1 herein.

He was sentenced to 1 to 3 years on May 4, 1940; he was confined to the Ohio State Prison until August 3, 1942.

On February 7, 1948, respondent was charged with violating section 10-2105 of the Indiana statutes (entitled, "Fraudulent Checks") and he pleaded guilty in Wayne County Circuit Court, Indiana. In April 1948, respondent was sentenced to 1 to 10 years, serving nearly a year at Indiana State Prison.

Ohio and Indiana, like several other states,1 have "cold check" statutes which are similarly worded, having been copied from the same model. The statutes in question read as follows:

Section 710-176 (Page's Ohio General Code, 1937):

Drawing check, draft, etc., without credit; penalty.—Any person, who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money upon any bank or other depository, who, at the time thereof, has insufficient funds or credit with such bank or depository, shall be guilty of a felony, and upon conviction thereof shall be fined not less than fifty dollars and not more than two hundred dollars, or imprisoned in the Ohio State Penitentiary for not less than one year nor more than three years or both.

Prima facie evidence of intent to defraud.─As against the maker or drawer thereof, the making, drawing, uttering, or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository. The word "credit" as used herein shall be construed to mean any contract or agreement with the bank or depository for the payment of such check, draft, or order, when presented.

Section 10-2105 (Burns' Indiana Statutes, 1933):

Fraudulent checks-Act of 1927.-Whoever with intent to defraud by obtaining money, merchandise, property, credit, or thing of value, although no express representation is made in reference thereto, or who, in the payment of any obligation, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation, knowing at the time of such making, drawing, uttering, or delivering that the maker or drawer has not sufficient funds in or credit with such bank, despository, person, firm, or corporation, for the payment of such check, draft, or order in full upon its presentation, shall, on conviction, be imprisoned in the State prison 1 Parallel statutes exist in the following jurisdictions:

Kentucky: Baldwin's Rev. Statutes, 1942, sec. 434.070; Commonwealth v. Bandy, 291 Ky. 721, 165 S. W. (2d) 337; King v. Commonwealth, 203 Ky. 163, 261 S. W. 1096 (1924); Commonwealth v. Hammock, 198 Ky. 785, 250 S. W. 85 (1923).

Massachusetts: General Laws, 1933, ch. 266, sec. 37; Fuller v. Home Indemnity Co., 318 Mass. 37, 60 N. E. (2d) 1 (1945).

Michigan: Annotated Statutes, 1935, sec. 28.326, 28.327, 28.328; People v. Smith, 271 Mich. 553, 260 N. W. 911 (1935).

New York: McKinney's Consolidated Laws, 1944, sec. 1292a; People v. Weiss, 263 N. Y. 537 (1933); People v. Olans, 264 N. Y. 420 (1934).

West Virginia: Annotated Code, 1949, sec. 5980; State v. McGinnis, 116 W. Va. 473, 181 S. E. 820 (1935).

for not less than one (1) nor more than ten (10) years: Provided, however, That when the money, merchandise, property, or thing of value obtained is less than twenty-five dollars ($25.00), the punishment shall be the same as the punishment prescribed by law for petit larceny. The making, drawing, uttering, or delivering of such check or draft or order as aforesaid shall be prima facie evidence of intent to defraud. The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank, depository, firm, or corporation, for the payment of such check, draft, or order (acts 1927, ch. 201, sec. 6, p. 576).

The offense defined in the "cold check" statutes belongs in general to the family of criminal false pretenses and is a species of fraud by false pretenses. Huffman v. State, 205 Ind. 75, 185 N. E. 131 (1933); Hughes v. Commonwealth, 232 Ky. 232, 22 S. W. (2d) 618 (1929). The gist of the offense in both statutes lies in the fraudulent intent and knowledge. Union Gas & Electric Co. v. Coffman, 36 Ohio Law Rept. 201, 1931; Koenig v. State, 121 Ohio State Rept. 147 (1929); State v. Vice, 33 Ohio opinions 544 (1946).

The statute creates a rebuttable statutory presumption of guilt, based on prima facie evidence of intent to defraud. However, proof of intent to defraud, according to judicial construction, is an essential of the crime and a conviction for this offense. People v. Will, 289 N. Y. 413, 46 N. E. (2d) 498 (1943); People v. Ledwell, 14 N. Y. S. (2d) 371 (1939); Union Gas & Electric Co. v. Coffman, (supra.)

Therefore, since the gravamen of the offense has repeatedly been held to be the intent to defraud 2 and moral turpitude inheres in such criminal intent, we conclude that convictions under section 710-176, Ohio General Code, and section 10-2105, Indiana statutes, were both convictions for crimes involving moral turpitude. People v. Will (supra); Seaboard Oil Co. v. Cunningham, 51 F. (2d) 321 (C. C. A. 5, 1931). The charge under section 19, act of 1917, of having been sentenced more than once to imprisonment for periods of 1 year or more as a result of convictions for crimes involving moral turpitude after entry, is accordingly sustained.

When the warrant hearing was held in the present case on April 27, 1950, respondent was confined to the Indiana State Farm, Greencastle, Ind., serving a sentence for another "cold check" violation which occurred, according to respondent's testimony in Vanderburgh County, Evansville, Ind., and for which he received a 6-month sentence plus a fine of $25 and court costs.

'Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1929); State v. McGinnis, 116 W. Va. 473, 181 S. E. 820 (1935); Caldwell v. Commonwealth, 221 Ky. 232, 298 S. W. 681 (1927).

U. S. ex rel. Mongiovi v. Karnuth, 30 F. (2d) 825 (W. D. N. Y. 1929); U. S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C. C. A. 2, 1931); U. S. ex rel. Shladzien v. Warden, 45 F. (2d) 204 (E. D. Pa., 1930).