Interim Decision. #1236 

MASTER OF SZEGEDI 

In DEPORTATION Proceedings 

A-11575482 

Decided by Board Auoust,10, 1960 

"Homicide by reckless conduct" in violation of section 940.00, Wisconsin Statutes, 

is not a crime involving moral turpitude. 

CIWIGE: Act of 1952—Section 241(a) (4) [8 U.5.0. 1251 (a) (4)1—Convicted of 

crime within five years after entry. 

Respondent is 34 years old, single, male, a native and citizen of 

Hungary, whose only entry into the United States was on February 10, 

1959 as a refugee-escapee under the Act of September 11, 1957. He 

was convicted on September 17, 1961 for the crime of "Homicide by 

Reckless Conduct contrary to the provisions of section 940.06 Wisconsin Statutes", and was sentenced to confinement in the Wisconsin 

State Prison for an indeterminate term of five years. At the time of 

hearing he was confined in this institution. The special inquiry officer 

found that the crime for which respondent was convicted was not a 

crime involving moral turpitude, ordered the proceedings terminated, 

and certified the case to this Board for final decision. 

The District Attorney for Racine County, Wisconsin filed an information against respondent charging that on December 26, 1960 he did 

"feloniously cause the death of Ference Pinter'by conduct imminently 

dangerous to him and evincing a depraved mind, regardless of human 

life, contrary to the form of the statute section 9 ,10.02".1Respondent 

plead not guilty and was tried before a jury which returned a verdict 

of guilty of the crime of homicide by reckless conduct. 2 

Wis. Stet. Ann. 940.02 provides: "Second-degree murder—Whoever causes 

the death of another human being by conduct imminently dangerous to another 

and evincing a depraved mind, regardless of human lire, may be imprisoned not 

less than 5 nor more than 25 years." 

2 Wis. Stitt. Ann. 940.08 provides: "Homicide by reckless conduct: (1) Whoever causes the death of another human being by reckless conduct may be fined 

not more than $2,500 or imprisoned not more than 5 years or both. (2) Reckless 

conduct consists of an act which creates a situation of unreasonable risk and 

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Interim Decision #1286 

It is so well established as not to need elucidation, that this Board 

has no authority to retry a criminal case. In making our decision we 

may look only to the record, consisting of the information (or indictment), the plea, the verdict, the sentence, and the pertinent statutes, 

in determining whether or not the crime for which respondent was 

convicted was a crime involving moral turpitude, as that term is interpreted by judicial and administrative decisions. Therefore, the special 

inquiry officer did not inquire deeply into the circumstances behind 

the commission and conviction for this crime, and properly so. 

However, the special inquiry officer did. ask respondent what happened that resulted in the death of Pinter Ference (p. 6). Respondent 

answered that there were three men in respondent's room : the deceased, 

who was respondent's • best friend, respondent, and a third person. 

Respondent stated that he was demanding money he had loaned to the 

third person, that the third person refused to pay back the money, 

that the deceased took respondent's shotgun, and tried to hit respondent 

with the gun. "In the scuffle, my hand was also broken, and while we 

were arguing and scuffling, the three of us, the gun went off and Pinter 

Ferenc was shot. I did not have the gun. in my hand." The record 

does not show the evidence developed in the criminal proceeding. 

The precise question for determination' y the Board is whether or 

not the crime of "homicide by reckless conduct" under the Wisconsin 

Statutes is a crime involving moral turpitude. The special inquiry 

officer quoted the definition of such &crime from Wing v. United State8, 

46 F. 2d 755 (7th Cir. 1931), that it is 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 

customary rules of right and duty between man and man. The special 

inquiry officer concluded that while a man committing such an act (as 

that described by section 940.09 may be guilty of conduct which is 

contrary to the accepted and customary rules of right and duty between 

man and man, the crime as defined by the statute need not be accompanied by a vicious motive or a corrupt mind. The special inquiry 

officer says there need be no intent to cause death or inflict serious 

injury, and concluded that the crime for which respondent was convicted did not involve moral turpitude. 

Prior decisions of the Board that arose under provisions of the 

codes of states other than Wisconsin, are not precisely in point, because 

the offense of "homicide by reckless conduct" is a statutory offense 

high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take 

known chances of perpetrating an injury. It is intended that this definition 

embraces all of the elements of what was heretofore known as gross negligence 

in the criminal law of Wisconsin." 

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Interim Decision #1236 

without a counterpart in the common 1;,,w, or in most codes, so far as 

we can discover. The leading Board decision is Matter of B—, 2 I. & N. 

Dec. 559 November 1946; A.G., July 1047) . The alien therein 

was indicted on two occasions for murder in the second degree, the indictments alleging that on each occasion he "unlawfully, purposely 

and maliciously killed" another person. On each occasion (first in 

1926 and again in 1943) the alien pleaded guilty to the lesser offense 

of manslaughter and was sentenced to serve an indeterminate term 

of imprisonment. Since the Ohio statute included both voluntary 

and involuntary manslaughter within the same section of the law, 

making no distinction, the Board decided that the crime should be 

taken at its minimum and found that the convictions should be considered as having been for involuntary manslaughter. The Board 

found that the acceptance of the plea of guilty to manslaughter removed "the elements of purpose and malice and there remains only 

the element of unlawful killing". The Attorney General reversed 

the Board, finding that the manslaughter was voluntary because of 

the allegations in the indictment (which defined or related to seconddegree murder), and said, "By his plea of guilty to manslaughter, 

the alien admitte,d these killings. In the absence of other evidence 

in the records of conviction, under the Ohio statute it is reasonable 

to conclude that the homicides committed by the alien were voluntary. 

Consequently, the crimes involved moral turpitude." 

All other Board decisions in this area also concern indictments for 

murder, either first or second degree followed by convictions for manslaughter. In Matter of 1—, 2 L & N. Dee. 477 (B.I.A. 1946) , the alien 

was convicted of "assault with intent to commit manslaughter" in 

Florida. The Board held on the basis of decisions of the Supreme 

Court of Florida that this offense could only include voluntary manslaughter, because it required "an intent to commit." the act, and there 

could be no intent to commit involuntary manslaughter. It was, therefore, a crime involving moral turpitude. 

In Matter of B—, 4 I. & N. Dec. 493 (B.I.A. 1951), the Board found 

that the New Jersey statute included both voluntary and involuntary 

manslaughter, that the record did not disclose sufficient details or 

circumstances surrounding the killing of and that there was no 

indication that respondent had been convicted of voluntary, rather 

than involuntary, manslaughter. A dissent was recorded on the 

ground that the Attorney General's decision in Matter of B—, supra, 

2 I. & N. Dec. 559, the Ohio case, should control. 

In Matter of .11—B—, 4 I.8rN. Dec. 742 (B.I.A. 1952), the information charged the alien with murder (wilfully, unlawfully, feloniously, 

and with malice aforethought having killed a human being) and at 

the time of the commission of the offense being armed with an auto30 
Interim Decision #1236 

made revolver. The court found the alien guilty of manslaughter. 

The California Code, section 192, at the time of the alien's conviction 

defined murder and two kinds of manslaughter. The alien was 

clearly charged in the information with a voluntary killing, and there 

was no evidence in the record to support a finding of involuntary 

manslaughter. In the light of the Attorney General's decision in. 

Matter of S—, we concluded that the homicide committed was voluntary, and therefore involved moral turpitude. 

The instant case is not governed by the Attorney General's decision 

in Matter of S—, supra, 2 I. & N. Dec. 559, because the offense of which • 

Szegedi was convicted was not designated manslaughter, but homicide by reckless conduct, a statutory offense within the Wisconsin 

Code. From the maximum penalty provided by the statute, it is apparent that this is a lesser crime than manslaughter. Section 940.05 

provides a maximum penalty for Manslaughter of not more than 

10 years. Section 940.06 provides a maximum penalty for homicide 

by reckless conduct of not more than $2,500 fine, or imprisonment for 

not more than 5 years, or both. 

At present the Wisconsin Code provides ten degrees of Crimes 

Against Life, including Abortion and Assisting a Suicide. There are 

three degrees of Murder (sections 940.01-03), and the section on 

Manslaughter has four subsections,' Section 940.08 with which we 

are concerned is set forth in footnote 2, and requires and defines 

"gross negligence." 

For first degree murder all the statutory elements must be present: 

That is, (1) an act "imminently dangerous to others" and (2) "evincing a depraved mind, regardless of human life," and (3) a "premeditated design to effect the death of the person killed or any human 

being." Raiej v. State, 152 Wis. 503, 140 N.W. 21 (1013). • The 

Wisconsin second-degree murder statute eliminates the "mental purpose to take life." Zenau. v. State, 4 Wis. 2d 655, 91 N.W. 2d 208 

'940.05, Manslaughter : Whoever causes the • death of another human being 

under any of the following circumstances may be imprisoned not more than 

ten years : 

(1) Without intent to kill and while in the heat of passion ; or 

(2) Unnecessarily, in the exercise of his privilege of self-defense or defense 

of others or the privilege to prevent or terminate the commission of 

a felony; or 

(3) Because such person is coerced by threats made by someone other 

than his co-conspirator and which causes him reasonably to believe that \ 

his act is the only means of preventing imminent death to himself or 

another; or 

(4) Because the pressure of natural physical forces causes such person 

reasonably to believe that his act is the only means of preventing imminent public disaster or imminent death to himself or another. 

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Interim Decision #1236 

(1953), says, the "depravity" referred to in the statutory definition 

of second-degree murder is present as well in first-degree murder, the 

difference being absence of a. "design" to effect death. Walsh. v. State, 

195 Wis. 540, 218 N.W. 714 (1928). The "heat of passion" reduced 

what would otherwise be murder to manslaughter in the second or 

third degree (usually third). State v. Storteeky, 273 Wis. 362, 77 

N.W. 2d 721 (1956) ; Devroy T. State, 239 Wis. 466, 1 N.W. 2d 875 

(1942). 

The predecessor to section 940.06 was B.S. 4362, amended by Stat. 

1898, par. 4863; later Stat. 1929, section 340.26, defining manslaughter 

in the fourth degree. The development of this section of the Wisconsin. Criminal Code is set forth in. Bussard v. State, 233 Wis. 11, 

288 N.W. 187 (108D). Bussard was convicted of manslaughter in the 

fourth degree undersection 340.26, which provided as follows: 

Every other killing of a human being by the act, procurement or gross negligence 

of another, where such killing is not justifiable or excusable, or is not declared 

in this chapter murder or manslaughter of some other degree, shall be deemed 

manslaughter in the fourth degree. (Emphasis supplied.) 

Prior to the amendment in 1929, the same section, Stat. 1927, 340.26, 

was identical with the 1929 version, except that it read, "Every other 

killing of a human being by the act, procurement or culpable negligence of another, etc.". (Emphasis supplied.) The amendment in 

1929 was adopted following a request of the Supreme Court of 

Wisconsin in Clemens v. State, 176 Wis. 289, 185 N.W. 209 (1921), 

wherein "culpable negligence" was held to be ordinary negligence in 

that state. The court in Bussard said : 

It was there pointed out that as a result of mere inadvertence a person might in 

this state be convicted of the crime of manslaughter with the necessary serious 

consequences to himself and his family. It was suggested that at the earnest 

time available such elmages be made in the statutes of our state by the Legislature as will require, in order to convict of manslaughter in the fourth degree, 

gross negligence, as defined in the decisions of this court. 

Gross negligence had been defined previously by the Wisconsin 

Supreme Court in Jorgenson v. C. 6 N.T.B. Co., 153 Wis. 108, 140 

N.W. 1088 (1913), as follows: 

Gross negligence has received a very certain and definite meaning in the jurisprudence of this state, somewhat different from the meaning given to it in other 

states ; it is not inadvertence in any degree ; there must be present either willful 

intent to injure, or that wanton and reckless disregard of the rights of others 

and the consequences of the act to himself, as well as others, which the law 

deems equivalent to an intent to injure. (Emphasis supplied.) 

In Brassard v. State, supra, the Supreme Court said that, while the 

defendant had been negligent in a high. degree, it could find no evidence 

of wantonness, recklessness, or willfulness. State v. Whatley, 210 

Wis. 157, 245 N.W. 93 (1932), says that evidence of gross negligence to 

32 
Interim Decision #I236 

warrant conviction for fourth degree manslaughter under Statute 1929, 

section 340.26 had to warrant finding beyond a reasonable doubt that 

accused's misconduct was more reprehensible than mere want of ordinary care. 

As to what constitutes "gross negligence", State v. Wiclestrom, 14 

Wis. 2d 416,111 N.W. 2d 176 (1961), held that to justify a conviction 

for causing death by a high, degree of negligence in operation of a 

motor vehicle, the risk must be unreasonable and probability high or 

greater than ordinary negligence, but not so great as to constitute 

"wilful and wanton conduct characterizing gross negligence". 

It becomes apparent, therefore, that the view of the Wisconsin courts 

and Legislature is that homicide by reckless conduct connotes a degree 

of negligence well beyond the "high degree of negligence" and "un -

reasonable risk" defined in section 940.08. The Supreme Court of that 

state has declared on several occasions that to find gross negligence 

"there must be present either a wilful intent to injure, or that wanton 

and reckless disregard of the rights of others and consequences of the 

act to himself which the laws deem equivalent to an intent to injure." 

This might be termed "imputed intent." 

Still there must not have been an intent actually to cause a death 

or the offense would be raised from manslaughter in the fourth degree. 

&hied v. State, 75 Wis. 486, 44 N.W. 509(1890), concerned a killing 

by defendant during a fight in a saloon. The court held that 

defendant might have been convicted of manslaughter in the fourth 

degree, under RS. section 4362. In Doherty -v. State, 84 Wis. 

152, 58 N.W. 1120 (1893), the defendant was a policeman who 

shot deceased during a, struggle. The officer placed the muzzle 

of a pistol against his assailant's body and pulled the trigger. The 

defendant officer claimed that his intent was only to disable deceased. 

The court found that defendant was presumed to have intended the 

natural consequences of his act and to have fired with the intention to 

kill deceased. Therefore, he could not be convicted of manslaughter 

in the fourth degree under R.S. 4362 which provided that to constitute 

the latter offense the killing must be involuntary. A similar case is 

Beauregard v. State, 146 Wis. 280, 131 N.W. 347 (1911), which held 

that when blows on the head with a gun barrel were inflicted voluntarily, regardless of consequences, although without any specific intent 

to cause death, the killing was not involuntary,within the meaning of 

Statute 1898, par. 4362, defining manslaughter in the fourth degree. 

In the instant case the fact that the jury found respondent guilty, 

not of second-degree murder, but of the lesser offense of homicide by 

reckless conduct, removed the element of "depraved mind" present 

in 940.02, the second -degree murder statute. To recapitulate: prior 

Board decisions have held that voluntary manslaughter does involve 

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Interim Decision #1236 

moral turpitude, and involuntary manslaughter does not involve moral 

turpitude. However, the Wisconsin Code has taken all the "Crimes 

Against Life" out of the common-law pattern (murder, voluntary 

manslaughter and involuntary manslaughter). If respondent had 

been convicted prior to the 1955 recodification the offense would have 

come within section 340.20, 1929 Statutes, defining "manslaughter in 

the fourth degree." The crime of homicide by reckless conduct more 

nearly resembles the common law offense of involuntary manslaughter 

than it resembles the common law offense of voluntary manslaughter. 

Respondent was guilty of gross negligence but, necessarily, he was 

found not to have had a specific intent to kill, or to do an act the 

natural consequence of which was to cause death. 

Even if the cases have swung somewhat away from the requirement that a crime to involve moral turpitude must include such baseness, vileness or depravity as to be shocking and offensive, we still 

consider that voluntariness or intent to commit the act or some act 

must exist before we can find that the crime involves moral turpitude. 

We cannot find a case, or think of an instance, wherein the offense has 

been held to involve moral turpitude where no intent to commit the 

act existed. 

The Wisconsin Legislature has by law declared that negligence 

so gross as respondent's, and conduct so reckless, implies intent and 

malice. Even if we believe respondent to have been in fact grossly 

negligent and reckless, does this statute describe a crime involving 

moral turpitude as a matter of late? It seems to the Board that -while 

a legislature may in a criminal statute "impute" intent or legislate 

"mans rea", it cannot do so for the purpose of establishing moral turpitude under the immigration laws. 

On this record we find respondent was not convicted of a crime 

involving moral turpitude as a matter of law. The order of the special 

inquiry officer will be sustained. 

ORDER: It is ordered that the order of special inquiry officer of 

February 12, 1962 be and is hereby sustained. 

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