Respondent was released to Nashville, Tenn., police authorities on April 30, 1950, for prosecution there for similar offenses in connection with his passing three worthless checks, totaling $800, in 1949.

In passing, we wish to comment on the applicability to the instant case of U. S. ex rel. Portada v. Day, 16 F. (2d) 328, S. D. N. Y. (1926), cited by the hearing examiner in his recommended decision. The Portada case is not controlling here, for the California "cold check" statute in issue at that time differed materially from the Ohio and Indiana statutes now under consideration. Since the word "wilfully” was specifically used in the California statute, there was no room for judicial interpretation regarding the necessity of an intent to defraud as an element of the crime; a fraudulent intent was an indispensable element of the crime, according to the plain wording of the statute. On the other hand, the word "wilfully" is conspicuously missing from the Ohio and Indiana statutes now before us, leaving the courts free to determine judicially, as they have done, that an intent to defraud is an essential element of the crime.

For these reasons, the appeal is dismissed.

Order: It is hereby ordered that the appeal be dismissed.

IN THE MATTER OF

In EXCLUSION Proceedings

A-7463281, A-7463282, and A-7463283

Decided by Central Office March 15, 1951

Decided by Board December 19, 1951

Crime involving moral turpitude-Foreign-Germany-Riot accompanied by assault of an official-Assault of official in the lawful exercise of his office. (1) The crime of participation in riot in violation of section 115 of the German Criminal Code, accompanied by an assault of an official in the lawful exercise of his office in violation of section 113 of such code, does not involve moral turpitude, because knowledge that the person assaulted was a police officer is not necessarily an element of the offense.

EXCLUDED:

Act of 1917-Convicted of crime involving moral turpitude, to wit:
Rioting (principal applicant).

Act of 1924-Not preference quota immigrants as specified in visas
(accompanying applicants).

BEFORE THE CENTRAL OFFICE

(March 15, 1951)

Discussion: The applicants comprise a family group consisting of the principal applicant, aged 26, a native of the Ukraine, his wife, aged 20, a native of Germany; and their child, aged 16 months, a native of Germany; all citizens of the Union of Soviet Socialist Republics. They seek admission as displaced persons under the provisions of the Displaced Persons Act of 1948, as amended. A Board of Special Inquiry found the applicants inadmissible on the grounds shown in the caption and they have appealed.

The principal applicant's inadmissibility is predicated upon his conviction by a Summary Military Court at Augsburg, Germany, on March 28, 1947, of the crime of rioting, for which he received a sentence of 60 days. The pertinent portion of the Extract of Court Record reads as follows:

1st-Violation of Military Government Ord. I, article II, section 43, and the German Penal Code 360.8 (refusing to give information to a competent official). In that A 0—, Ukrainian, did at Augsburg, on 18 March 1947 refuse to give information to a competent official concerning his identity, to wit: The

accused refused to give information to a German policeman concerning his identity and to show his identification papers.

2d-Violation of Military Government Ord. I, article II, section 43, and German Penal Code 115, section 2 (taking part in a public riotous gathering and assaulting a German policeman in the lawful exercise of his office).

In that A- 0——, Ukrainian, did at Augsburg, on 18 March 1947 take part in a public riotous gathering and use force and threats against a German policeman in the lawful exercise of his office, to wit: On 18 March 1947.

As will be noted, only the second charge was used as the basis for the finding of inadmissibility. Section 115 of the Statutory Criminal Law of Germany provides:

Whoever takes part in a public riotous gathering at which one of the offenses mentioned in sections 113 and 114 is committed by the gathering shall be punished for riot by imprisonment for not less than 6 months.

The ringleaders as well as those rioters who have committed one of the offenses specified in sections 113 and 114 shall be punished by confinement in a penitentiary not to exceed ten years; police surveillance may also be ordered. If there are extenuating circumstances, imprisonment for not less than 6 months may be imposed.

In deciding the issue presently before us for consideration it is important to note that the male appellant was not charged with and has not been convicted of assaulting an official engaged in the lawful exercise of his office, a separate and distinct offense under section 113 of the German law. This appellant stands convicted only of taking part in a public riotous gathering at which he assaulted a German policeman while that official was engaged in the lawful exercise of his office, an offense under section 115 of the German law. It is equally important to note that this appellant was not convicted of an offense of simple riot alone or of unlawful assembly since such offense falls not within section 115 but within section 116 of the German law. There is no offense under section 115 unless and until an offense mentioned in section 113 or 114 is committed during the riot. The description of the offense in the Extract of Court Record establishes that only section 113 is applicable here with regard to the offense under section 115. The pertinent part of that section states:

Whoever, with force or threats of force, resists an official (Beamte) whose duty is to execute the laws, orders, and decrees of administrative authorities, or the judgmments and orders of the courts while such official is engaged in the lawful exercise of his office, or whoever assaults such official while he is engaged in the lawful exercise of his office, shall be punished by imprisonment from 14 days to 2 years.

Accordingly, while we are not called upon at this time to determine whether on the facts here presented an offense under section 113 would involve moral turpitude, it is believed that should such offense involve moral turpitude, it will be a factor to be considered in determining whether the offense of which this appellant was convicted is one involving moral turpitude.

The Solicitor of Labor in a memorandum dated April 29, 1926, classifying crimes generally, was of the opinion that the offense of "rioting" might involve moral turpitude. At the same time, without comparison except as to the offense of an "affray," as to which offense. the distinction was noted that an "affray" differed from a "riot" in not being premeditated, the Solicitor was of the opinion that the kindred offenses of "affray," "public disorder (disorderly conduct)," "breach of the peace," and "unlawful assembly" were not crimes involving moral turpitude.

The offense of "riot" has commonly been defined as a tumultuous disturbance of the peace by three or more persons assembled and acting with a common intent either in executing a lawful private enterprise in a violent and turbulent manner to the terror of the people, or in executing an unlawful enterprise in a violent turbulent manner. U.S. v. Fenwick, 25 Fed. Cas. No. 15086, 4 Cranch, C. C. 675; U. S. v. Stewart, 27 Fed. Cas. No. 16401-a Hayw. & H. 280. The gist of the offense is its tending to provoke a breach of the peace. "Riot" involves the execution of an agreement, express or implied between three or more persons to commit an assault, or battery, or a breach of the peace, through (1) unlawful assembly; (2) intent mutually to assist against unlawful authority and (3) act of violence. The intention which is generally an element of the offense of "riot” is the intent to join in, or encourage, the acts which constitute the riot; namely, the assembly, violence, turbulence, and the act violently and turbulently performed. The violent and turbulent enterprises of bodies of men have uniformly been considered as dangerous to the rights of other citizens.

Since the Solicitor was of the view that the offense of "rioting" might involve moral turpitude, it is difficult to conclude that a statute which punishes a rioter where in the course of the riot an official engaged in the performance of his duties is assaulted, is not one involving moral turpitude. This appears to be especially so where the statute in question does not punish the mere riot itself. The conclusion that such statute is one involving moral turpitude would find support if it is concluded that the subsidiary act of assaulting the official, which is itself punishable under another section of the law, is an offense involving moral turpitude. Consideration will now be given to that aspect of the case.

It will be observed that section 113 of the German law concerns two distinct acts which it denounces as criminal: (1) Resisting an official; and (2) assaulting an official in the lawful exercise of his office.

The offense of "resisting an official" under section 113 of the German Criminal Code was under consideration by the Board of Immigration Appeals in Matter of S-, A-7476137 (September 12, 1950). In considering whether resisting arrest involves moral turpitude, the Board

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of Immigration Appeals determined that the proper test was to consider whether resisting arrest accomplished by the least imaginable force, involved moral turpitude. In concluding that the offense of "resisting" under the statute in question did not involve moral turpitude, the Board stated:

It is to be noted that section 113 of the German Criminal Code requires no specific intent. The adult male had committed a petty offense and the resistance offered the arresting officer by the male appellant apparently was only a token resistance, such as an unwillingness or a reluctance to accompany the police officer to the police station. There is nothing in the record to show that the arresting officer was assaulted or that he suffered any bodily injury when he arrested the adult male appellant on December 3, 1948. He maintained his arrest. It is true that the charge sheet filed by the arresting officer on December 8, 1948, contains the words "by force and violence" but it is silent as to the nature or character of the force and violence, if any. It may have been that the resistance offered by the male appellant was passive rather than active. That there were extenuating circumstances surrounding the adult male appellant's arrest and conviction under section 113 of the German Criminal Code is borne out by the fact that he was tried in the magistrate's court and the light sentence imposed by the senior magistrate for both offenses is further evidence that the appellant's crime of resisting an officer in violation of the aforementioned section of the German Criminal Code was not considered serious. [Italics supplied.]

Where a statute such as the one we are now considering is broad enough to include acts which do not involve moral turpitude, we must hold that a violation thereof does not involve moral turpitude although acts which may involve moral turpitude are also covered by the statute. U. S. ex rel. Mylius v. Uhl, 210 Fed. 860. As we have pointed out, the statute covers acts of a very minor nature, and the force offered to an arresting officer could be caused by the momentary reaction to the arrest rather than a deliberate, calculated resistance to law and order. We conclude, therefore, that the crime which the adult male appellant committed on December 3, 1948 (violation of sec. 113, German Criminal Code) and for which he was convicted on December 9, 1948, is not a crime involving moral turpitude. Accordingly, the criminal ground upon which the adult male appellant was found inadmissible is not sustained.

The crime under consideration in the instant case concerns that portion of the statute which comprehends the offense of assaulting an official in the lawful exercise of his office. This offense has not heretofore been the subject of an adjudication with regard to the immigration laws. It is the view of this Service that the decision of the Board of Immigration Appeals in Matter of S (supra), is not dispositive of the issue presently before us except to the extent that that decision warrants the inference that an assault upon an arresting officer as disinguished from a resistance to an arrest would involve moral turpitude in view of the sentence underscored above.

With respect to the offense of an assault committed upon a police officer there is one court decision and several administrative decisions. In the case of Ciambelli ex rel. Maranci v. Johnson, 12 F. (2d) 465 (D. C. Mass. 1926), the district court held that, where a police officer was assaulted during an affray in which several persons participated,