State v. Malusky , 59 N.D. 501 ( 1930 )

I adopt the principles set forth in the syllabus and concur in the conclusion reached by Judge Nuessle though not with all of the reasoning.

The crime to which the defendant pleaded guilty on May 28, 1928, is a felony under our statute. Petitioner admits that under the name of Joe Holoski he was convicted of grand larceny in 1914 in Wisconsin and sentenced to serve a term of one year in the Wisconsin state reformatory; and that in the year 1917 in St. Louis county, Minnesota, under the same name he was convicted of perjury and sentenced to serve a term of ten years in the Minnesota State Prison.

The defendant says, however, that the felony for which he is serving sentence is not such a felony as under the provisions of this chapter 126 of the Session Laws of 1927 authorizes or permits the increase of the penalty and § 4 of the act says:

"Provided, that the provisions of this Act shall not apply to offenses made felonies by statute not involving moral turpitude."

Turpitude is defined by Webster as "inherent baseness or vileness of principle, words, or actions; shameful wickedness; depravity." There appears to be a tendency to restrict the term "moral turpitude" to sexual crimes; but the meaning is much broader than this. The term "moral" adds nothing "to the meaning of the term other than that of emphasizing which often results from a tautological expression," (See Hughes v. State Medical Examiners,162 Ga. 246, 134 S.E. 46) and, as said in Crabb v. Kansas State Dental Examiners, 118 Kan. 513, 235 P. 830: "Whatever is forbidden by law must for the time being be considered as immoral." The supreme court of California, in Re Coffey, 123 Cal. 522, 56 P. 448, says the term turpitude is defined as "everything done `contrary to justice, honesty, modesty, or good morals,'" and the criminal charge involved was a misdemeanor.

It is not necessary to prove a bad motive on the part of one in order to have it said that he is guilty of moral turpitude. During the war many with good motives, though some might think them perverted, opposed and obstructed the recruiting and enlistment service of the United States. By the federal statute it is a felony to do this either by inducement or persuasion. See Espionage Act of June 15, 1917. One Daniel O'Connell was indicted, charged with violating this law, and found guilty. See O'Connell v. United States, 253 U.S. 142, 64 L. ed. 827, 40 S. Ct. 444. He was a member of the bar of California, and proceedings for his disbarment were commenced on the charge that he was an attorney "convicted of a felony or of a misdemeanor involving moral turpitude." See Re O'Connell, 184 Cal. 587,194 P. 1010. The supreme court of California in the body of the opinion says:

"In his answer the accused sets up certain matters alleged to be shown by the so-called bill of exceptions attempted to be incorporated as a part of the record in his case on the review of the proceedings by the Supreme Court of the United States, as showing that under the circumstances of his case there was no moral turpitude on his part. We cannot even enter upon a discussion of this claim on its merits. As we have seen the record of conviction is made conclusive evidence in so far as this proceeding is concerned."

Thus conviction for a felony made the defendant infamous and therefore showed conclusively he was possessed of moral turpitude. Later he made application for reinstatement. In Re O'Connell, 199 Cal. 538, 48 A.L.R. 1232, 250 P. 390. The Court in the body of this opinion (page 544) says:

"There can therefore be no question but that the moral obliquity of the petitioner was established by his conviction, which led to his disbarment. The record was conclusive evidence of the justice of the conviction and laid on him a moral stigma that rests upon him until it be satisfactorily explained, or there is unmistakable evidence, by years of correct living and a proper attitude on the part of the convicted person, that it no longer exists."

In disbarring him the court had said (184 Cal. 587):

"That such conduct on his part would involve moral obliquity and constitute a base offense against his fellow men and his country entirely regardless of statute prohibiting it cannot, it seems to us, be seriously questioned."

Moral turpitude reflects an attitude of mind, is determined by the act, not by the sentence, and is such as taken in connection with the crime charged, ordinarily renders a person infamous. Where moral turpitude is connected with acts defined as crimes anything which renders him infamous is considered to have been caused by moral turpitude.

Infamous crimes have always been considered the result of moral turpitude in the criminal. At common law a "person convicted of treason, felony and the crimen falsi were rendered infamous," — the latter under the ancient civil law embracing all crimes based on fraud and deceit, including forgery, perjury, and such matters where fraud and deceit were involved. See Taylor v. State,62 Ala. 164. Hence it has always been the rule that one guilty of a crime which rendered him infamous showed conclusively that he possessed moral turpitude. In the case of Bartos v. United States Dist. Ct. (C.C.A. 8th) 19 F.2d 722, 723, the circuit court of appeals of the United States said, with reference to the charge involved "it was not a felony — hence not infamous." In the case of Ex parte Wall, 107 U.S. 265, 273, 27 L. ed. 552, 556, 2 S. Ct. 569, the Supreme Court of the United States, in dealing with the question of the disbarment of an attorney says: "If regularly convicted of a felony, an attorney may be struck off the roll, as of course, whatever the felony may be, because he is rendered infamous." Hence it is that felonies at all times have been considered infamous crimes, and always involve moral turpitude.

Our statute defines a felony as "any crime which is or may be punishable with death or imprisonment in the penitentiary." See §§ 9197 and 10,387 of Comp. Laws 1913. The statutory definition of a felony is the only definition which we know. As said in § 4331 of the Comp. Laws, "in this state there is no common law in any case where the law is declared by the Codes." It is true that § 11,179 says:

"The procedure, practice and pleadings in the district courts of this state, in criminal actions or in matters of a criminal nature, not specially provided for in this code, shall be in accordance with the procedure, practice and pleadings under the common law."

But this has nothing whatever to do with the nature of the offense or its classification. It is confined to "the procedure, practice and pleadings in the district courts of this state."

Under such definition of felony so far as the effect of the conviction is concerned, all distinctions between mala in se and mala prohibita disappears. When our statute states that the commission of certain acts is a felony it makes no difference whether it be making that a crime which before was legally innocent, or lowering a misdemeanor to the class of felony, or merely restating the common law. Today felonies are determined by the nature of the punishment which may be inflicted, the punishment is presumed to be according to the nature of the deed, and it is by the punishment the criminal is declared to be infamous.

All crimes not defined as felonies are misdemeanors but there are misdemeanors which involve moral turpitude; or in other words all felonies and some misdemeanors involve moral turpitude. It is essential to know this because confusion arises at times owing to the use of such terms as "conviction for a felony or misdemeanor which involves moral turpitude." It is contended by the appellant that there are felonies which do not involve moral turpitude and he bases this upon some such statements and quotations. The matter has come frequently before the courts in the matter of disbarment of attorneys. In Re Henry, 15 Idaho, 755, 21 L.R.A.(N.S.) 207, 99 P. 1054, where proceedings were brought for the disbarment of an attorney, the supreme court of that state, in defining moral turpitude under a provision of § 4002 of the Idaho Code providing for the removal or suspension of an attorney upon "his conviction of a felony or misdemeanor involving moral turpitude," shows that larceny involves moral turpitude regardless of whether it is grand larceny or petit larceny. Of course grand larceny being a felony would involve moral turpitude from two standpoints — first, because it is larceny and second because it is a felony; whereas petit larceny though a misdemeanor comes within that class of crimes which show moral turpitude. Our statute is almost identical with that of Idaho providing that an attorney may be disbarred "when he has committed a felony or a misdemeanor involving moral turpitude." It inserts the article "a" and thus renders the true meaning in all of these cases where the law attempts to define a condition involving moral turpitude — assuming that a felony involves moral turpitude, and that there may be misdemeanors which do the same. See also Morrison v. State, 85 Tex.Crim. Rep. A.L.R. 1607, 209 S.W. 742. This distinction showing felonies to be infamous crimes and distinguishing between misdemeanors and infamous crimes at common law and misdemeanors which do involve moral turpitude is shown in State v. Taylor, 98 Mo. 240, 241, 11 S.W. 571.

In Ex parte Wilson, 114 U.S. 417, 29 L. ed. 89, 4 S. Ct. 935, 4 Am. Crim. Rep. 283, the Supreme Court of the United States says:

"What punishment shall be considered as infamous may be affected by the changes of public opinion from one age to another — for more than a century imprisonment at hard labor in the state prison or penitentiary has been considered an infamous punishment in England and America."

In this case cited the court had under consideration a petition for a writ of habeas corpus based on the fact that the petitioner had been convicted upon information and not indictment and it was alleged in defense of the practice that he had not been found guilty of an infamous crime, and thus there was no violation of the provisions of the 5th Amendment of the United States Constitution, which says: "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or an indictment of a grand jury." In the syllabus of the case the Supreme Court of the United States says: "A crime punishable by imprisonment for a term of years at hard labor is an infamous crime under the provisions of the 5th Amendment," and in the body of the opinion Justice Gray says:

"The associated words `or otherwise infamous crime' must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should be held to include also crimes infamous in their nature, independently of the punishment affixed to them."

See also United States v. Petit, 114 U.S. 429, note, 29 L. ed. 93, 5 S. Ct. 1190.

Moral turpitude must in itself reflect to a certain extent the social attitude toward the acts complained of. As the United States Supreme Court in Ex parte Wilson, 114 U.S. 417, 29 L. ed. 89, 4 S. Ct. 935, 4 Am. Crim. Rep. 283, supra, says this attitude varies according to times and conditions. Surely our boasted progress from the times of eight and ten centuries ago has caused a change of attitude toward certain acts. Many acts which were not considered reprehensible then, either by the general laws of society or the laws of the land, are today considered wrongs and crimes. While we have mitigated punishments to a large extent, yet we have risen beyond the coarseness, vileness and lower standards of these preceding centuries, and what six hundred years ago was ordinary may today be considered as showing moral turpitude. From the days of the adoption of the state Constitution to the present time the liquor traffic has been outlawed in this state. It is true the constitutional provision was not self-executing; but one who violates the prohibition law in this state is setting at naught and boldly defying the Constitution of the state, the laws enacted to carry the constitutional provisions into effect and the express public policy of the state. Since the adoption of the 18th Amendment of the Constitution of the United States the liquor traffic is outlawed in the whole nation and one violating the laws enacted to carry this Amendment into effect is flagrantly and deliberately defying the Constitution of the United States. It is difficult to conceive how such a situation as that cannot be said to involve moral turpitude. It shows a debased and depraved attitude of mind on the part of the criminal toward his social obligations and his duty to the nation and the state. As said in Riley v. Howes (D.C.) 17 F.2d 647, 649: "Certainly since prohibition has become a part of the Constitution it cannot be said that conspiracy to violate the laws passed in accordance with this mandate involves no moral turpitude."

The offense charged is one forbidden by the state through its entire existence. The adoption of prohibition of liquor traffic by the state and nation is an effort made to cure admitted evils and is a result of a moral attitude of the people toward an age old problem and its anti-social consequences. With its wisdom we are not concerned. The laws enacted for this purpose are the outgrowth of changed conditions and this change of attitude toward the problem renders most of the precedents from Bracton and Littleton through Coke and Blackstone down to yesterday of little value. The attitude of the public toward the liquor traffic in those days was entirely different from what it is today. The violation of regulations were looked upon as merely venal. Today, whether for good or ill, the state and nation have adopted a different policy. As said in State v. Macek, 104 Kan. 742, 748, 180 P. 986: "The times change. Men change, and their opinions change; their notions of right and wrong change. The United States, its government and people, have come a long, long way since the Washingtonian Society was organized in 1840 to combat intemperance. — The whole matter is one of public policy. And the public policy of a State must largely be shaped by legislation."

Violations of the expression of popular will set forth in the Constitution and the acts of the legislature present a situation where the defiant and persistent violator must be considered as engaged in an enterprise to undermine the constitutional fabric of the state and nation. Means are provided to change such constitutional and legislative provisions. Such criminal acts are the expression of anarchy and show a moral attitude which cannot be attributed to anything else than a determined purpose to set at defiance the nation and the state. It is true that all crime partakes of this feature, but these laws being a recent and direct change of front in an attack on an ancient and continued problem show a change in public policy and the violator must of necessity place himself in the position of one who not only violates the law but who also places himself in the position of rebellion against specific constitutional provisions.

If one merely advising others to violate the law of the land may be giving aid and comfort to the enemy and thus is considered to have such moral obliquity as results in moral turpitude it cannot be said that one who deliberately and intentionally and repeatedly defies a specific constitutional provision of the state and the laws made to carry it into effect, and defies a specific constitutional provision of the constitution of his nation and the laws made to carry it into effect has not such moral obliquity, which irrespective of the legal classification of the crime, constitutes moral turpitude.

In Rousseau v. Weedin (C.C.A. 9th) 284 Fed. 565, the circuit court of appeals of the United States was considering the question of the deportation of an alien who had been convicted in the state of Washington for violating the state law against "jointist" — which appears to be but another name for blind-pigger. Under the law of Washington the crime of being a jointist was a felony, and punishable as a felony. The question was whether such alien should be deported because he had been "convicted of and admits having committed a felony or other crime or misdemeanor involving moral turpitude prior to his entry into the United States." The defendant had been convicted in Washington. He went to Canada, and then re-entered the United States. The circuit court of appeals held that "one who wilfully opens a place for conducting a business which is positively forbidden and made punishable by law as a felony is guilty of an offense which involves moral turpitude."

The supreme court of Massachusetts had occasion in the case of Jones v. Robbins, 8 Gray, 329, 349, to discuss the meaning of the term infamous punishment and says:

"Whether we consider the words `infamous punishment' in their popular meaning or as they are understood by the constitution and laws, a sentence to the state prison for any term of time, must be considered as falling within them."

Hence it is clear from these holdings that where a man has been sentenced upon a conviction for a felony as the appellant in this case was sentenced, he is by that very fact shown to have committed a crime involving moral turpitude.

In Rudolph v. United States, 55 App. D.C. 362, 40 A.L.R. 1042, 6 F.2d 487, we have the decision of the supreme court of district of Columbia involving the status of a retired policeman who had violated the law of the United States regarding the "possession and transportation of intoxicating liquor" and the court holds that such an act "is a crime involving moral turpitude, the commission of which is ground for discontinuation of pension regardless of whether the crime be a first or second offense." It is true the decision takes into consideration that the retired officer at one time had taken an "oath to support and defend the Constitution of the United States and to bear true faith and allegiance to the same." But the taking of an oath to support the Constitution does not impose a greater duty upon a citizen. It is the duty of every citizen to support the Constitution and laws of the nation and of the state. The supreme court of Oregon in the case of State ex rel. Young v. Edmunson, 103 Or. 243, 204 P. 619, says: "No boot-legger is a supporter of the Constitution and laws of the United States and of the state of Oregon." It is true this latter case was a disbarment case but the charge was the commission of acts involving moral turpitude and "illegal possession of intoxicating liquors" was the substance of the charge. The District Court of Columbia in Rudolph v. United States, 55 App. D.C. 362, 40 A.L.R. 1042, 6 F.2d 487, supra, says:

"The man who traffics in intoxicating liquors in violation of the Constitution and laws of the United States, whether it be the first or the tenth offense, is an offender against the public peace, dignity and morality of the United States and a conviction in a court of competent jurisdiction implies criminal intent."

It is difficult to see how that one can engage in the liquor traffic in violation of law without a deliberate intent because he does it intentionally and defiantly and when this is regarded in such a way as to be classified by our statutes as a felony the culprit becomes infamous and shows that he has such a condition of moral obliquity in relation to the nation and state and the laws of same that his mind is perverted and he is guilty of baseness in principle and in action.

As said in Rudolph v. United States, supra: "We are not much concerned with the distinction sought to be made between crimes malum in se and those which are merely malum prohibitum. Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commission of the offense, if it involves the violation of a rule of public policy and morals, is such an act as may involve moral turpitude." 55 App. D.C. 362, 40 A.L.R. 1042, 6 F.2d 487.

The supreme court of Kansas holds that although the unlawful possession of intoxicating liquor is a misdemeanor under the statutes of that state nevertheless it is one which involves moral turpitude.

"The expressed sentiment of the people of the state and nation is that for reasons involving moral grounds the use of liquor must be curbed, and to that end various acts in relation to it have been forbidden because to permit them would tend to frustrate the general purpose of constitutional prohibition. In Kansas one of these forbidden acts is the possession of liquor. He who disobeys the statute in this regard to that extent refuses to abide by the legislative declaration of public policy and in some degree lends himself to its defeat. In this aspect there is no difference in principle between the violation of the provision against the possession of liquor and those forbidding its manufacture or sale. None of them would necessarily be immoral in the absence of written law."

See State v. Bieber, 121 Kan. 536, 48 A.L.R. 255, 247 P. 875.

In Kurtz v. Farrington, 104 Conn. 257, 48 A.L.R. 259,132 A. 540, the supreme court of Connecticut says: "One convicted of violating the National Prohibition Act by the possession of property for the manufacture of intoxicating liquor and the possession of liquor for beverage purposes is guilty of moral turpitude, and if the conviction carries imprisonment, it may be shown to affect his credibility as a witness under a statute permitting conviction of crime to affect credibility."

In the body of the opinion the court says: "Our country and our Constitution are inseparable. The Constitution has held our past; it now holds our present; and, if we keep to its defined course, it will sustain our future. The National Prohibition law and the state laws passed in aid of the enforcement of the 18th Amendment are vitally necessary to the life and strength of this Amendment. Without them it must fail in its purpose. The violation of these laws is a violation of the Constitution of the United States. If one provision can be violated with impunity, another soon will be. If one who gives aid to the enemy of his country in time of war is guilty of moral turpitude, how may we distinguish the man who in time of peace, by his deliberate course, helps to destroy the Constitution."

And later the same opinion says that we hold "that violations of the 18th Amendment necessarily involve moral turpitude."

To the same effect is State ex rel. Young v. Edmunson, 103 Or. 243, 204 P. 619, supra, where the supreme court of Oregon says: "Violation of the prohibition law and the willful publication of false and scandalous matters concerning others are crimes involving moral turpitude," and here the violation of the prohibition law was a misdemeanor. However the case was like that of Rudolph v. United States, 55 App. D.C. 362, 40 A.L.R. 1042, 6 F.2d 487, supra, aggravated by the fact defendant had taken an oath to support the Constitution of the United States and the Constitution of Oregon.

It is the contention of the defendant that at all times the violation of the liquor laws has not been considered such a crime as involves moral turpitude and generally the violation of the liquor laws is classed as a misdemeanor. At common law such misdemeanor was never considered as involving moral turpitude. The appellant has cited a list of cases as follows: "Ex parte State, 199 Ala. 255, 74 So. 366 (1916); Lakey v. State, 206 Ala. 180, 89 So. 605 (1920); Ex parte Marshall, 207 Ala. 566, 25 A.L.R. 338, 93 So. 471 (1922); Swope v. State, 4 Ala. App. 83, 58 So. 809 (1912); Abrams v. State, 17 Ala. App. 379, 84 So. 862 (1920); Lyles v. State, 18 Ala. App. 62, 88 So. 375 (1921); Horsley v. State, 19 Ala. App. 263, 96 So. 937 (1923); Wheeler v. State, 4 Ga. App. 325, 61 S.E. 409 (1908); Edenfield v. State,14 Ga. App. 401, 81 S.E. 253 (1914); Hays v. State, 47 Tex. Crim. 149,82 S.W. 511; id. 47 Tex.Crim. Rep., 83 S.W. 201; Holmes v. State, 68 Tex.Crim. Rep., 150 S.W. 926; Jennings v. State, 82 Tex.Crim. Rep., 200 S.W. 169; Carter v. State,100 Tex. Crim. 95, 271 S.W. 629; McGovern v. Hayes, 75 Vt. 104, 53 A. 326," to show that "violations of the prohibition laws are not offenses involving moral turpitude." An analysis of these cases show that in almost every case the issue arose over the question of the impeachment of a witness by showing his conviction for a crime, and under a statute which did not permit of impeachment by such method except in cases where the conviction was for a crime involving moral turpitude. In the cases listed, with the exception of the third, the conviction depended upon for impeachment was for a misdemeanor merely, — one was a violator of a municipal ordinance — and the court held such misdemeanors did not show moral turpitude. Hence these are not in point in the case because this appellant was not convicted of a misdemeanor, but of a felony. The third case cited will be discussed later. The tenth case does not even remotely touch the subject, and we cannot find the 13th case listed. It will also be noted that only two of these cases, — the third and seventh — arose after the adoption of the 18th Amendment to the Constitution of the United States.

In the third case in the list of cases cited by appellant — Ex parte Marshall, 207 Ala. 566, 25 A.L.R. 338, 93 So. 471, — the supreme court of Alabama says:

"The distillation of spiritous liquors, although made a felony by statute, does not involve moral turpitude so as to admit evidence of conviction of such offense as having the credibility of a witness."

But this holding is not in harmony with the general definitions and certainly violates the principle involving in a felony itself — that is that a man guilty of a felony is ipso facto rendered infamous and that no man could be rendered infamous without showing moral turpitude. The opinion shows it is based upon a legal definition adopted by the courts of Alabama decades ago and which the Court refused to change. But laws change, standards change, and interpretations must change with them.

The defendant cites the case of Coykendall v. Skrmetta (C.C.A. 5th) 22 F.2d 120. An investigation of that case shows that the violation of the liquor law of which the defendant was convicted was a mere misdemeanor and made so by statute.

It is the contention of the defendant that to hold all felonies involve moral turpitude does violence to the express understanding and interpretation given by the legislature as set forth in § 4 of the act under consideration. This section reads as follows:

"Provided, that the provisions of this Act shall not apply to offenses made felonies by statute not involving moral turpitude."

In reviewing the history of the Act we find the bill was introduced in the House and after passing that body was sent to the Senate. Here it was amended by the addition of § 4, and upon its passage in the Senate was returned to the House, where the amendment was concurred in and the bill as amended was passed. It would appear therefore the legislature had in mind that there were felonies which did not involve moral turpitude, and that as to these felonies the law was not applicable.

In this case there is much speculation as to "offenses made felonies by statute not involving moral turpitude," and counsel for defendant has urged the legislature must have had in mind some distinction between so-called common-law felonies and statutory felonies. As we have shown there is no such distinction in our law. There is no question but what the legislature may make the commission of certain acts a felony and at the same time say the law under consideration should not apply to it. In the statute under consideration the legislature did not see fit to specify what were the "offenses made felonies by statute" to be considered as "not involving moral turpitude." It did not say engaging in liquor traffic as a second offense was to be omitted. Not having so specified we need not concern ourselves in regard to some other possible felony which by the statute has been made a felony, and yet the legislature said should not be considered as involving moral turpitude, or whether this could be done. When we reach that kind of a felony it will be time to consider it.