The respondent, an alien, a native of Trieste, 53 years of age, married, last arrived in the United States at the port of New York on October 10 or 11, 1949, as a stowaway ex-S.S. Saturnia. The evidence of record affirmatively establishes that he did not have an immigration visa; that he entered without inspection; and that he was previously arrested and deported from the port of New York on May 31, 1945. He has not been granted permission to reapply for admission. The hearing examiner in his opinion of June 24, 1950, finds the respondent deportable on all of the charges stated above with the exception of the lodged charges relating to the respondent's conviction of the crime of attempted unlawful entry of a building for which he was convicted in the State of New York in 1921 and the crime of unlawful entry of a building of which he was convicted in 1931. The hearing examiner concludes that these crimes did not involve moral turpitude. The Assistant Commissioner, on the other hand, concludes that the aforementioned crimes involve moral turpitude since in each the indictment charges that the offense intended to be committed inside the building was one involving moral turpitude. We deem it advisable to reexamine the legal question involved in light of what appears at first blush to be a conflict between our decision in Matter of G 56122/766, 1, I. & N. Dec. 403 (January 21, 1943), and a subsequent case, Matter of M, A-4705281 (B. I. A. May 20, 1946).

The 1921 indictment here under consideration charges the respondent with the crime of "attempted burglary in the third degree” in that the defendant "attempted to break and enter the store of *** with intent to commit therein the crime of larceny." A plea of "not guilty" was entered to the indictment and on May 23, 1921, the jury found him "guilty" of the crime of "attempted unlawfully entering a building." The 1931 indictment charges the crime of burglary, third degree, in that the defendant "* * * did break into and enter with intent to commit some crime therein, to wit, with intent the

goods, chattels and personal property *** in the said shop then and there being *** to steal, take and carry away." The respondent was permitted to plead "guilty" to the crime of "unlawfully entering a building" on this occasion.

The issue here presented is a determination of whether the offenses of which the respondent stands convicted involve moral turpitude. Since the respondent was convicted of lesser crimes than those for which he was indicted, we are faced with the legal problem of

'Prior to its amendment on September 1, 1935, section 405 of the New York Penal Code defined the crime of unlawfully entering a building as follows:

"A person who, under circumstances or in a manner not amounting to burglary, enters a building or any part thereof, with intent to commit a felony or a larceny, or any malicious mischief, is guilty of a misdemeanor."

Section 2 of the Penal Code defines an attempt as "an Act, done with intent to commit a crime, and tending but failing to effect its commission, is 'an attempt to commit that crime.'"

whether under the law governing criminal procedure in the State of New York 2 the court in accepting a plea to or a jury in convicting a defendant of a lesser degree of the crime charged or one necessarily included in the offense charged must confine its consideration to the averments in the indictment which are pertinent to the lesser crime or is its consideration limited to the statutory definition of the lesser crime?

We may not go beyond the record of conviction in reaching our conclusion as to whether the crimes of which the respondent stands convicted involve moral turpitude. U. S. ex rel. Meyer v. Day, 54 F. (2d) 336 (C. C. A. 2, 1931); U. S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C. C. A. 2, 1931). This can only be determined by a consideration of the contents of the indictment, plea, verdict and sentence. U.S. ex rel. Zaffarano v. Corsi, 63 F. (2d) 757 (C. C. A. 2, 1933). By reason of the foregoing basic rules, the law governing criminal procedure in the State of New York is important.

A pleading or indictment is essential to the prosecution of a crime and to the acceptance of a plea in regard thereto under the law regulating criminal procedure in the State of New York (Code of Criminal Procedure, sections 4, 222, 444, and 445). Section 332 of the Code provides for three different types of pleas: (1) A plea of guilty; (2) a plea of not guilty; (3) a plea of a former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of not guilty. Section 334 provides among other things that if the accused pleads guilty to any lesser crime than that charged in the indictment, "the defendant pleads guilty to the crime of (naming it)." Since February 24, 1936, the Code of Criminal Procedure has stipulated certain requirements where the court has accepted a plea of "guilty" to a lesser offense than that charged in the indictment. When section 342 (a) was enacted, it was merely a repetitious declaration of a power previously conferred upon the dis

* Section 444 of the New York Code of Criminal Procedure provides: "Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime." Section 445 provides: "In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment."

'Section 342 (a): "In any case where the court, upon the recommendation of the district attorney, and in furtherance of justice, accepts a plea of guilty to a crime or offense of a lesser degree or for which a lesser punishment is prescribed than the crime or offense charged, it shall be the duty of the district attorney to submit to the court a statement in writing in which his reasons for recommending the acceptance of such plea shall be clearly set forth. Such statement shall be filed by the court with the other papers in the case and shall be a public record subject to inspection by any person."

trict attorney and the court by the New York State constitution* with a new requirement that the district attorney's recommendation must be in writing.

The Code of Criminal Procedure of New York State for the most part is declaratory of the common law. McDonald v. Sobel, 272 App. Div. N. Y. 455, 461, June 1947, aff'd, 297 N. Y. 679; Dedieu v. People, 22 N. Y. 178. At common law no part of the power to accuse a person of crime or to prosecute a person for crime was vested in a court. A fortiori a fundamental doctrine of the common law is that a lesser plea cannot be accepted by a court nor can there be a conviction of any crime unless there is a pleading before it.

The case of People ex rel. Romano v. Brophy, 280 N. Y. 181 (1939), 20 N. E. (2d) 385, is illustrative of the function of a pleading under the Code of Criminal Procedure in the State of New York. The defendant in that case was convicted of the crime of assault in the second degree on a plea of guilty and was sentenced to a term of from 212 to 5 years. He was also sentenced to a further term of from 5 to 10 years for violation of section 1944 of the penal law which provides additional punishment where it is proven that the defendant was armed at the time of the commission of the crime. Upon completion of his sentence for the assault offense, he sued out a writ of habeas corpus on the ground that a separate term had been inflicted without indictment. In this connection the court said, "From the face of the indictment it would appear that the prisoner pleaded guilty to seconddegree assault, but it does not recite that he is charged with the offense of carrying firearms at the time of the commission of the crime. The notation that the prisoner was sentenced for a violation of section 1944 of the penal law must necessarily have been written on the indictment after the petitioner had been sentenced and could not, therefore have constituted advance notice to him that he was charged with the commission of this offense as distinguished from that of second-degree assault to which he pleaded guilty. If the case has been tried out, the facts no doubt will appear upon which the jury finds the verdict of guilt. *** Where a plea has been taken the fact that the prisoner was armed may not so clearly appear or may be denied. The judge should then conduct an inquiry and take testimony, if necessary." The writ was sustained and the relator discharged from custody.

We have previously noted that the law governing criminal procedure in the State of New York permits a conviction of any degree where the statute defining the crime provides for several different degrees or of any offense necessarily included in that which the defendant is charged in the indictment. The function of the pleading under these provisions of the Code is illustrated by the case of People v. Van Orden,

* See New York State constitution, art. VI, sec. 11, and art. IX, sec. 6.

19 N. Y. S. (2d) 938 (1940). The defendant in that case was indicted. for first-degree murder in that he "shot and killed Samuel Guthert with a revolver." He pleaded guilty to murder in the second degree and after a lapse of part of his sentence he filed a motion to strike out the additional term imposed by reason of being armed (Penal Law, sec. 1944). The court held that by reason of his plea of guilty to the lesser offense the defendant admitted "all of the essential ingredients of the charge, except that of deliberation and premeditation." The court denied the motion for the following reasons: (1) That no hearing on the gun charge was necessary because that feature of the indictment was admitted by the plea of guilty; (2) that even if the hearing on the gun charge was the defendant's right, it was waived by acceptance, without protest, of the additional penalty. The court reasoned: "Where the nature of the plea clearly embraces an admission of shooting, and rejects the indictment only as to the essential ingredients of murder in the first degree, to wit: premeditation and deliberation, a special inquiry or hearing on the question of a gun would be procedural surplusage.'

It is apparent from the foregoing that both the pleading (indictment) and the statutory definition of the crime adjudged must be considered by the court when there is a conviction of a lesser crime than that charged in the indictment. Regardless of the plea entered, a criminal judgment as a matter of law must have the support of an indictment charging the crime adjudged or a higher degree thereof or a crime necessarily involving or included in the crime of which sentence is imposed (secs. 4 and 222, Code of Criminal Procedure; sec. 6, N. Y. State constitution; People ex rel. Romano v. Brophy, supra). A plea of guilty to a lesser crime than that charged in the indictment must necessarily be directed to a specific crime defined by statute (sec. 334, Code of Criminal Procedure, N. Y.). A plea of guilty to a lesser offense clearly embraces an admission of all the elements set forth in the statutory definition of the lesser crime and these must be pleaded in the indictment for the greater offense. It rejects the indictment only as to the elements contained in the statutory definition of the greater offense which are surplus (People v. Van Orden, supra). Accordingly, under the Code of Criminal Procedure in New York State, when there is a conviction of a lesser offense than that charged in the indictment, the statute defining the lesser crime serves as the determinant by which the surplus is struck from the indictment.

The crime of unlawfully entering a building at the time of the respondent's conviction in 1921 and 1931 was defined by section 405 of the New York penal law as follows: "A person who, under circumstances or in a manner not amounting to burglary, enters a building, or any part thereof, with intent to commit a felony or a larceny, or any malicious mischief, is guilty of a misdemeanor."

When we considered Matter of G

56122/766 (supra), the statute had been amended to read, "with intent to commit a crime".5 The indictment under consideration in the G-case contains six counts charging (1) burglary in the third degree; (2) petty larceny; (3) possession of burglar's instruments after prior conviction; (4) robbery in the first degree; (5) assault in the second degree; (6) assault in the second degree. G-was permitted to plead guilty to the crime of "unlawfully entering a building."

We are of the opinion that the conclusion we reached in the Gcase is supported both by the law governing criminal procedure in New York State and the precedents interpreting the pertinent provisions of the immigration laws. The indictment did charge the commission of crimes involving moral turpitude in some of its counts but, on the other hand, this is not necessarily so with regard to other counts. Cf. Guarino v. Uhl, 107 F. (2d) 399; U. S. ex rel. Valenti v. Karnuth, 1 F. Supp. 370, 376. Since the statute defining the lesser crime (unlawful entry) serves as the determinant by which the surplus allegations in the indictment are eliminated, the plea of guilty was not necessarily an admission that the unlawful entry was with intent to commit one of the several crimes charged which necessarily involve moral turpitude. Under the ruling in the Zaffarano case (supra) we were unable to go beyond the record of conviction to ascertain the actual facts. Accordingly, under the circumstances of the G-case we were unable to determine that the allegations in the indictment relating solely to the crime of "unlawful entry" with intent to commit any one of several crimes charged a crime involving moral turpitude. Conviction of a lesser offense is acquittal of the higher offense, (People v. Wein, 196 App. Div. N. Y. 368, 370, 187 N. Y. S. 753).

The M case, (supra), however, presented a factual situation wherein the presence or absence of moral turpitude could readily be ascertained from the record of conviction. In that case we were concerned with an indictment in seven counts, five of which were dismissed. The two counts remaining charged burglary in the first and second degrees with intent to commit larceny. The defendant was permitted to plead "guilty" to the crime of buglary, third degree," pursuant to section 444 of the Code of Criminal Procedure. We referred to the fact in our opinion that intent is an element of burglary as to all degrees in New York. We then proceeded to determine the presence or absence of moral turpitude in the same manner as we did in the G case (supra); that is, we eliminated the allegations in the

5 The offense in that case was committed on October 25, 1941, and the statute amended September 1, 1935.

Burglary, third degree: "A person who (1) with intent to commit a crime therein breaks and enters a building, or (2) being in a building commits a crime therein and breaks out of the same is guilty of burglary in the third degree."