Before MARIS, MAGRUDER and KALODNER, Circuit Judges.
This is an appeal by the defendant from his conviction in the District Court of the Virgin Islands of murder in the first degree and from the sentence of death imposed by the court pursuant to the recommendation of the trial jury. The homicide in question took place in the town of Christiansted, in the Municipality of St. Croix. The Code of Laws of that municipality, enacted by an Ordinance of the Colonial Council of St. Croix, approved June 15, 1920, provides, in Title IV, Chapter Five, as follows:
"Section 1. - Murder is the unlawful killing of a human being, with malice aforethought.
"Section 2. - All murder which is perpetrated by means of poison, lying in wait, torture, or by any other kind of wilful, deliberate, and premediated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, burglary, robbery, or mayhem, is murder in the first degree, and all other kinds of murder are of the second degree.
"Section 3. - Every person guilty of murder in the first degree shall suffer death, or if there be extenuating circumstances, shall suffer confinement in the penitentiary for life. Upon a plea of guilty the court shall determine the punishment. Upon a verdict of guilty the jury in the verdict shall recommend whether the punishment be death or imprisonment. Every person guilty of murder in the second degree is punishable by imprisonment in the penitentiary not less than ten years."
It was under the foregoing sections of the Code that the defendant was convicted of murder in the first degree and sentenced to death.
Upon this appeal he asserts that the verdict was contrary to the weight of the evidence and that it was accordingly error for the District Court to refuse to set it aside and to grant a new trial. He also contends that there was evidence of extenuating circumstances and that the jury accordingly erred in recommending that his punishment should be death. We shall first consider the latter contention.
As we have seen, Title IV, Chapter Five, Section 3 of the St. Croix Code provides for the punishment to be imposed upon a person guilty of murder in the first degree. That punishment is to be either death or imprisonment for life. Which punishment it to be imposed in a particular case is to depend upon whether there are extenuating circumstances. If such circumstances are found to exist the punishment is to be life imprisonment, otherwise it is to be death. If the defendant pleads guilty the trial judge determines whether extenuating circumstances exist and imposes punishment accordingly. But if the defendant enters a plea of not guilty it becomes the duty of the jury, if it finds the defendant guilty of murder in the first degree, to consider whether the evidence establishes the existence of extenuating circumstances. If the jury finds that there are extenuating circumstances in the case it is to recommend life imprisonment but if it finds that no extenuating circumstances appear it is to recommend death.
Is a recommendation thus made by the jury conclusive as to the defendant's punishment? We think not. It will be observed that the Code lays down a legal standard by which the jury's action is to be determined. Its recommendation is required to be based upon its determination from the evidence that extenuating circumstances either do or do not exist in the case.*fn1 The existence of extenuating circumstances, however, is a matter which the trial judge is just as competent as the jury to determine.
It will also be observed that, whereas, in the case of a plea of guilty the Code provides that the trial judge shall "determine" the punishment, in the case of a verdict of guilty the jury is to "recommend" it. The use of the verb "determine" in the one case and "recommend" in the other cannot be without significance. To recommend is to present as one's advice or choice or as having one's approval.*fn2 It ordinarily involves the idea that another has the final decision. Here the recommendation of the jury is presented to the court.The Code does not expressly direct the court to carry it out. The implication, therefore, is that it is the duty of the trial judge, to whom the recommendation is made, to determine and impose the appropriate punishment under the law. In making this determination the trial judge has before him the jury's recommendation and he must give it due weight. But he may also have before him facts derived from a presentence investigation which were not before the jury.*fn3 Moreover he may disagree with the jury as to whether the evidence itself establishes extenuating circumstances. We hold, therefore, that in determining the appropriate punishment the trial judge must reach his own conclusion, upon all the facts before him, as to the existence of extenuating circumstances in the case. In reaching his conclusion he should give due consideration to the jury's recommendation but he is not bound by it. Accordingly if he concludes from all the facts before him that extenuating circumstances exist it becomes his duty to impose a sentence of life imprisonment even though the jury may have recommended death, while if he concludes that extenuating circumstances do not exist he must impose the sentence of death even though the jury may have recommended life imprisonment.
In the case before us the trial judge regarded the jury's recommendation as binding upon him and, therefore, did not exercise his own independent judgment with respect to the existence of extenuating circumstances in the case. The judgment of the court would, therefore, have to be vacated and the cause remanded for determination of this question by the trial judge and resentence accordingly if the jury's verdict that the defendant was guilty of murder in the first degree were permitted to stand. If, however, the verdict itself must be set aside and a new trial granted the jury's recommendation will fall with it and need not be further considered.
We are thus brought to the principal question raised upon this appeal, namely, whether the verdict of guilty of murder in the first degree was so contrary to the weight of the evidence that it should be set aside and a new trial granted. Before passing upon the merits of this question we must first decide whether we have been given power to consider it. We accordingly proceed to consider the scope of our power of review.
The Acts of Congress which have conferred jurisdiction upon this court to review cases arising in the Virgin Islands are set out in a note.*fn4 Upon reviewing this legislation it appears that from 1917 to 1925 this court had jurisdiction to review all cases arising in the District Court of the Virgin Islands which would previously have been reviewable under the Danish law by the Courts of Denmark. From 1925 to 1938 we had appellate jurisdiction of final decisions of the District Court of the Virgin Islands in the cases specified in § 128 of the Judicial Code as it was amended from time to time and of certain interlocutory decisions of that court as specified in the Code. Since 1938 we have had jurisdiction of appeals from all final decisions of the District Court of the Virgin Islands as well as from the interlocutory decisions referred to in the Code. Thus we clearly have jurisdiction to review on appeal the defendant's conviction in the case now before us. Moreover by Section 2106 of Title 28 U.S.C.A., this court has power to "affirm, modify, vacate, set aside or reverse" the judgment of the District Court and to "remand the cause and direct the entry of such appropriate judgment, * * * or require such further proceedings to be had as may be just under the circumstances." But, except possibly for this ...