KINNEY

Interim Decision #1343




                           Me nn or KINNEY

                   In DEPORTATION Proceedings

                                A-5585866

                    Decided by Begird May 20, 1064
Respondent's conviction of obtaining goods under false pretenses in violation
 of section 8 General Statutes of Connecticut, 1949 Revision (C.G.S.A.
  section 58-382), is not a conviction of a crime involving moral turpitude.
Cmiu
  Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4)]—Two crimes
          after entry: breaking and entering (three counts) and larceny (three
          counts) (1957) ; obtaining goods under false pretenses (1958).


   This is an appeal by the trial attorney from the decision of the
 special inquiry officer holding that the respondent was not deportable
upon the ground stated above. The question presented on the appeal
is whether respondent's conviction for obtaining goods under false
pretenses is a crime involving moral turpitude. The appeal will be
dismissed.
   The respondent, a 38-year-old single male, native and citizen of
Canada, was admitted to the United States for permanent residence
on October 8, 1942, he last entered the United States about the summer
of 1947 after a brief visit to Canada. His deportation is sought on
the ground that he had been convicted of two crimes after entry. In
1957 he was convicted on three counts of breaking and entering and on
three counts of larceny, all, the special inquiry officer found, arising
out of a single scheme. Respondent was fined $72.
   On June 23, 1958 respondent was convicted at Manchester, Connecticut for obtaining goods under +al% pretenses in violation of section
8698, General Statutes of Connecticut, 1949 Revision (C.G.S.A., Section 53-362). The special inquiry officer held that the crime defined
did not involve moral turpitude because intent to defraud was not an
element; the Service contends the special inquiry officer is in error.
   Section 8698, General Statutes, reads as follows: Any person who
knowingly makes or causes to be made, either directly or indirectly

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or through any agency, any false statement in writing, with intent that
it shall be relied upon, concerning the financial condition or means or
ability to pay of himself or of any other person for whom he is acting
or of any firm or corporation in which he is interested or for which he
is acting, for the purpose of procuring, for his own benefit or for
the benefit of such person, firm or corporation, the delivery of personal
property, the payment of cash, the marring of a loan or credit, the
extension of a credit, the discount of an account receivable or the making, acceptance, discount, sale or endorsement of a bill of exchange
or promissory note, or who, knowing that a false statement in writing
concerning the financial condition or means or ability to pay of himself
or of any such person, firm or corporation has been made, procures,
upon the faith thereof, for his own benefit or for the benefit of such
person, firm or corporation, any such delivery, payment, loan, credit,
extension, discount, making, acceptance, sale or endorsement, shall be
fined not more than two thousand dollars or imprisoned not more than
five years or both.
   The special inquiry officer, pointing out that Connecticut has a "false
pretense" statute (section 8696, 1949 Rev.; C.G.S.A.-53-360) in
which an "intent to defraud" is expressly made an essential element,
and that the "intent to defraud" is neither an expressed element of section 8698, nor one the courts have found there by implication, concluded that the crime could be committed without an intent to defraud
 (one could obtain goods by false representation and yet intend to pay
for them) and held therefore that moral turpitude was noninvolved. -
   The trial attorney believes that since section 8698 requires the false
statement to be made with intent that it be relied upon; the crime is one
involving moral turpitude. The intent to which moral turpitude
adheres, is the intent to do evil or work fraud this intent is absent
                                                 —


in section 8698. The intent that the false statement be relied upon is
not necessarily an intent to do evil or work fraud because as the
special inquiry officer has pointed out, one who intends that there be
reliance upon his false statement may nevertheless also intend to pay
for the goods he is attempting to obtain (Natter of 5—, 2 L & N. Dec.
353, 357-362; see, State v. Taylor,183N.W. 998 (Sup. Ct. S.D. 1921) ).
The fact that a person convicted under section 8698, intended to commit
fraud, does not make a conviction under the section one involving
moral turpitude. It is well settled that if a crime, as defined, does not
inherently involve moral turpitude, then no matter how immoral the
alien may have been in the particular instance, he cannot be deemed to
have been convicted of a crime involving moral turpitude. "It is the
moral obliquity of the crime and not of the individual that is the test
under the law" (Matter of E—, 2I. & N. Dec. 134, 145). The Service
cases do not establish that an intent to defraud is an essential element
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of a conviction under section 8698: State v. Penley, 

 (1858) involved a law which required an intent to defraud; Sallies v.
Janson, 

 (1911) was a civil action to recover damages for
fraud. Other cases cited are not pertinent.
   Since the Service has failed to establish that the conviction in question involves moral turpitude, the appeal of the trial attorney must be
dismissed.
  ORDER: It is ordered that the appeal of the trial attorney be and
the same is hereby dismissed.




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