The opinion of the court was delivered by: MURPHY
Patsy Ferro seeks naturalization under § 311 of the Nationality Act of 1940, 54 Stat. 1145, 8 U.S.C.A. § 711 (1940 ed.), now 8 U.S.C.A. § 1430(a).
As Patsy Fierra he was on August 27, 1924, while a fugitive from justice, indicted in a Pennsylvania state court for murder. Later apprehended he was on September 13, 1928, found guilty of murder in the second degree and sentenced to 'separate and solitary confinement at labor' for not less than ten nor more than twenty years. He was paroled after seven years and finally discharged from parole on September 18, 1948, less than five years prior to filing his petition for naturalization on October 10, 1952.
For reasons hereinafter stated, if the provisions of the Immigration and Nationality Act of 1952, enacted June 27, 1952, but not effective until December 24, 1952,
the petition would have to be denied forthwith. However, § 405(b) thereof requires that this petition be heard and determined under the 1940 Act.
While § 311(b) reduced the residence requirement it did not lessen the burden on the petitioner of showing good moral character 'for at least five years'.
A number of cases have held that good moral character can be established only where the applicant is a free moral agent having the same liberties and limitations as are common to other residents; not while he is on parole or in prison.
Implicit in the examiner's position is that the court is bound to follow that line of cases which hold that in determining whether or not good moral character has been established the court is restricted in its examination to the petitioner's conduct during the five years prior to filing the petition. The leading case for this view is Petition of Zele, 2 Cir., 1944, 140 F.2d 773, at page 776, 'Under the law the burden is on the petitioner to establish good moral character only during the five year period, not earlier. * * * And it has consistently been construed liberally so as to sanction forgiveness after the expiration of five years from the date of the disbarring misdeed.' And see Id., 127 F.2d 578, at page 580, 'Good behavior during the five year period is the only test of moral fitness provided in the statute',
followed in Petition of Sperduti, D.C.M.D.Pa.1949, 81 F.Supp. 833, Watson, C. J. (murder first degree).
Application of Murra, 7 Cir., 1950, 178 F.2d 670, at page 672, suggests that any other view would be 'contrary to the overwhelming weight of authority', but see Ralich v. United States, 8 Cir., 1950, 185 F.2d 784, at page 787, '* * * the courts seem to be about evenly divided.'
In our judgment the weight of authority, reason and principle is in favor of a broader scope of review. '* * * while the statute imposes upon applicants for citizenship the burden of proving five years good character, it does not restrict or limit in point of time, the power of the court to examine petitioner's qualifications for citizenship.' In re Balestrieri, D.C., 59 F.Supp. 181, at 182. See, e. g., Molsen v. Young, 5 Cir., 1950, 182 F.2d 480; Ralich v. United States, 8 Cir., 1950, 185 F.2d 784, at page 787; Marcantonio v. United States, 4 Cir., 1950, 185 F.2d 934; Yuen Jung v. Barber, 9 Cir., 1950, 184 F.2d 491, at page 495; In re Ross, C.C.M.D.Pa.1911, 188 F. 685, Witmer, J. (murder second degree) took this position; and see In re Markiewicz, D.C.W.D.Pa.1950, 90 F.Supp. 191, 194.
As to Application of Murra, see Ralich v. United States, supra, 185 F.2d at page 787, 'In Sodo v. United States, 406 Ill. 484, 94 N.E.2d 325, 327, the Supreme Court of Illinois in referring to * * * Application of Murra * * * said: 'There is nothing * * * in the Murra case which indicates that inquiry may not be made as to facts occurring prior to the five-year period for the purpose of elucidation of facts which occurred within the period." See and cf. Stevens v. United States, 7 Cir., 1951, 190 F.2d 880, at page 881.
Sometimes hard cases make bad law. A precedent may become hardened into a principle. An examination of the earlier cases, see notes 7 and 8 supra, suggests that the conduct in question was perhaps not sufficient to prevent the granting of citizenship. Instead of treating the problem as one of insufficiency of evidence to establish or prevent establishment of a fact the court placed its decision in effect on the theory of excluding evidence but, by way of statutory interpretation, treating the five-year period as one of limitation of the scope of review. See e. g., Application of Murra, supra, 178 F.2d at page 673, 'The wording of the statute itself leaves little room for doubt. If a five year period is a 'minimum requirement' * * * it become meaningless. If the time fixed by Congress is 'minimum,' then it would seem to follow that the maximum time would be during all of the petitioner's life.'
A short answer is that the scope of review is a question of evidence limited by the exercise of judicial discretion. See Molsen v. Young, supra, 182 F.2d at page 483, 'The statute does not require that the evidence * * *, be confined to the five year period. It merely disqualifies for citizenship those who cannot show the requisite * * * good moral character for at least five years prior to their application, and thereby fixes the minimum requirement as to these statutory qualifications which petitioners for citizenship must meet.' United States v. Etheridge, supra, 41 F.2d at page 764, 'The statute does not prescribe the evidence which shall be satisfactory to the court, nor that it be confined to the five-year period.' To place the discussion of this point in its proper setting, let us first review some general principles.
Naturalization is a matter of grace, not of right. Congress may grant or withhold the privilege upon any grounds or without any reason as it sees fit. Terrace v. Thompson, 1923, 263 U.S. 197, at page 220, 44 S. Ct. 15, 68 L. Ed. 255, and see United States Constitution, Art. I, § 8, Cl. 4. They may establish conditions prerequisite to the grant thereof and procedure for determining whether or not such conditions have been met. No alien has any right to naturalization unless all statutory requirements are complied with. Tutun v. United States, 1926, 270 U.S. 568, 578, 46 S. Ct. 525, 70 L. Ed. 738, '* * * in order to safeguard against admission of those who are unworthy, or who for any reason fail to measure up to required standards, the law puts the burden upon every applicant to show by satisfactory evidence that he has the specified qualifications.' United States v. Schwimmer, 1929, 279 U.S. 644, at page 649, 49 S. Ct. 448, at page 449, 73 L. Ed. 889.
Once such rules are prescribed courts are without authority to sanction changes or modifications therein. '* * * their duty is rigidly to enforce the legislative will * * *.' United States v. Ginsberg, 243 U.S. 472, at page 474, 37 S. Ct. 422, at page 425, 61 L. Ed. 853. '* * * Because of the great value of the privileges conferred * * * the statutes * * * are to be construed with definite purpose to favor and support the government.' United States v. Schwimmer, 279 U.S. at page 649, 49 S. Ct. at page 449, supra, 'Doubts * * * should be resolved * * * against the claimant.' United States v. Manzi, 1928, 276 U.S. 463, 467, 48 S. Ct. 328, 329, 72 L. Ed. 654.
Congress has declared that before one is entitled to the privilege of citizenship he must by competent evidence make it appear to the court that he has behaved as a man of good moral character. Good moral character is a fact to be determined.
See Spratt v. Spratt, 1830, 4 Pet. 393, at page 408, 29 U.S. 393, at page 408, 7 L. Ed. 897; United States v. Macintosh, 1931, 283 U.S. 605, at pages 616, 617, 51 S. Ct. 570, 75 L. Ed. 1302.
A personal attribute to be inferred from all relevant facts and circumstances which tend to reveal petitioner's attitude in that regard. See dissenting opinion, Stone, C. J., Schneiderman v. United States, 320 U.S. 118, at page 182, 63 S. Ct. 1333, 87 L. Ed. 1796; and see and cf. Mr. Justice Murphy speaking for the majority at page 139 of 320 U.S., at page 1343 of 63 S. Ct. By the very generality of the term used it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition.
See 3 Wigmore on Evidence, 3d Ed. § 920, '* * * there may be particular instances of conduct * * * from which is inferable the permanent disposition that has inspired them * * *.'
(1) 'On principle, the correct solution seems to be that prior character at any time may be admitted, as being relevant to show present character * * *.'
(2) 'Another solution is that prior character should not be resorted to unless for some reason present character cannot be truly shown * * *.'
(3) 'A third solution altogether excludes prior character.
This is wholly incorrect on principle, because it is founded on a fallacious analysis of the problem. It is objectionable in policy, because it excludes a class of evidence often meritorious in itself and sometimes the sole kind that is ...