(dissenting). The importance of the question involved justifies a brief statement of the considerations that impel my mind to a different conclusion from that reached by my associates. The ease was heard, as stated by the learned trial justice in deciding it, “on petition for writ of mandamus and answer thereto and to rule to show cause.” It is apparent, therefore, that the uneontradieted statements in the petition must be accepted here. So far as material to our present inquiry, they are as follows:
Petitioner, after having served about 15 years as a private in the police department of the District of Columbia, was retired on account of injuries received in the performance of his duties. “On January 2, 1924, while in the city of Baltimore, state of Maryland, on his way to make a visit to some friends in the country, he sustained an accident to the automobile which he was driving, and in the machine was found several bottles of liquor, which did not belong to him, but was being taken along by his friends; that, when the accident occurred, his friends ran away from the machine, and, he having no reason to run away, petitioner'remained there and was arrested by the police, and charged with having liquor in the machine which he was driving.” He subsequently entered a plea of guilty to the charge of “transporting and illegal possession of whisky” and was fined $200 and costs.
It is not disputed that the prosecution was for a first offense, as stated by the trial justice in his opinion. Under the Act of September 1, 1916 (39 Stat. 720), the commissioners of the District of Columbia “may, in their discretion, reduce or discontinue the relief granted to any person under the provisions of this act upon receipt of duly certified information from a court of competent jurisdiction that any person receiving such relief has been convicted in such court of any crime involving moral turpitude; and the said commissioners may also, in their discretion, reduce or discontinue the relief granted to any person under the provisions of this act when it shall appear to their satisfaction from evidence before them that such person is a habitual drunkard or guilty of lewd or lascivious conduct.”
The question, therefore, is whether appellee’s conviction was for a “crime involving moral turpitude,” within the meaning of the statute. It will be noted that Congress was careful to draw a distinction between certain *490crimes and those involving moral turpitude, and) further, that Congress did not declare that even conviction for a crime involving moral turpitude should in all eases work a. forfeiture, but lodged discretion in the commissioners in cases of such conviction. Moreover, this discretion is made to depend upon the existence of moral turpitude.
This statute being penal in character, it must be assumed that the words “crime involving moral turpitude” were used in their technical legal sense. What, then, constitutes such a crime? “Crimes have been divided, according to their nature, into crimes mala in se and crimes mala prohibita. The former class comprises those acts which are immoral or wrong in themselves, such as murder, rape, arson, burglary, and larceny, breach of the peace, forgery, and the like, while the latter class comprises those acts to which, in the absence of statute, no moral turpitude attaches, and which are crimes only because they have been prohibited by statute.” 16 C. J. 58.
In Gillman v. State, 165 Ala. 135, 51 So. 722, the court said: “Moral turpitude signifies an inherent quality of baseness, vileness [and] depravity.” In Baxter v. Mohr, 37 Misc. Rep. 833, 76 N. Y. S. 982, the court defined moral turpitude as “an act of baseness, vileness, or depravity, in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In Redway v. Gray, 31 Vt. 292, it was said: “The true reason why assaults, breaches of the peace, and violations of the liquor law are not such offenses as' make words charging them actionable is because they do not necessarily and in a legal sense imply moral turpitude.”
It was held in United States ex rel. Mylius v. Uhl, 210 F. 860, 127 C. C. A. 422, that a conviction for malicious publication of a defamatory libel, and imprisonment for 12 months, was not a conviction for an offense involving moral turpitude. ' The court said: “To. illustrate: A statute of the United States (Rev. St. § 2139) makes it a crime to give a glass of whisky to an Indian under the charge of an Indian agent. A conviction under this section would not be proof of moral turpitude, although the evidence at the trial might disclose the fact that the whisky was given for the basest purposes.”
See, also, Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347, and State v. Horton, 139 N. C. 588, 592, 51 S. E. 945, 1 L. R. A. (N. S.) 991, 111 Am. St. Rep. 818. In the first of these eases the Supreme Court said: “It is to be observed that the making of the illegal contract was malum prohibitum and not malum in se. There is no moral turpitude in such a contract, nor is it of itself fraudulent, however much it may afford facilities for fraud.” And in the Horton Case this distinction was thus explained: “An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community, whereas an act malum prohibitum is wrong only because made so by statute.”
For many years the government of the United States derived very considerable revenue from the manufacture of intoxicating liquor, which was generally recognized as property. 'While a different and definite public policy now has been declared, and of course that declaration should be observed by all good citizens, Congress has carefully refrained from denominating any offense under the Yolstead Act as anything more than a- misdemeanor. While a conviction of conspiring to violate- the provisions of this act would present a different question from that before us, the conviction here was for illegal possession and transportation, and appellee’s motive, whether good or bad, was unimportant. In other words, had appellee stood trial and established the facts alleged in his petition herein, the result necessarily would have been the same.
This ease,is analogous to that of Com. v. Matthew Adams, 114 Mass. 323, 19 Am. Rep. 362, where it was held that one who negligently drives over another is not guilty of a criminal assault and battery, although he does so while violating a city ordinance against fast driving. The court said: “It is true that one in the pursuit of an unlawful act may sometimes be punished for another act done without design and by mistake, if the act done was one for which he could have been punished if done willfully. But the act, to be unlawful in this sense, must be an act bad in itself, and done with an evil intent; and the law has always made this distinction: That, if the act the party was doing was merely malum prohibitum, he shall not be punishable for the act arising from misfortune or mistake; but, if malum in se, it is otherwise. 1 Hale, P. C. 39. Foster, C. L. 259. Acts mala in se include, in addition to felonies, all breaches of public order, injuries to person or property, outrages upon public decency or good morals, and breaches of official duty, when done willfully or corruptly. Acts mala prohibita include any matter forbidden or commanded by statute, *491but not otherwise wrong. 3 Greenl. Ev. § 1. It is within the last class that the city ordinance of Boston falls, prohibiting driving’ more than six miles an hour in the streets. Besides, to prove the violation of such an ordinance, it is not necessary to show that it was done willfully or corruptly.”
The majority opinion stresses the fact that appellee subscribed to an oath. So do the justices of this court; and yet I am loath to believe that, should one of us violate the statute limiting the speed of vehicles in the streets of this city, and be convicted therefor, he might be subject to impeachment as for conviction of a crime involving moral turpitude.
The offense charged against the appellee being merely malum prohibitum, and Congress having specifically declared it to be nothing more than a mere misdemeanor, and affixed a penalty as for a misdemeanor, I do not think it is for this court to give to the offense a classification inconsistent with that evidently intended by Congress. Had Congress intended a violation of the Volstead Act to be within the class of crimes involving moral turpitude, it would have affixed a penalty commensurate with such intent; but it adopted exactly the opposite course.
I think the judgment should be affirmed.