Before MARIS, WOODBURY, and FORMAN, Circuit Judges.
This is an appeal by the defendant, Hugh Smith, from a judgment of the District Court of the Virgin Islands, following a trial without a jury, finding the defendant guilty on both counts of an information charging involuntary manslaughter and sentencing him to imprisonment for a total of six years on the two counts. The evidence presented by the Government was accurately summarized by the trial judge at the conclusion of the trial as follows:
"The prosecution has adduced evidence showing that about seven fifteen on the 14th day of March of this year, the defendant was stopped by a police officer for the purpose of picking up Mrs. Ramona Warner at Clinton's Market. He drove her to the Food-O-Mat where she received some groceries, either the defendant got them or somebody brought them out, and they proceeded down the Veterans Drive out to Harwood Highway, as Mrs. Warner testified, at a reasonable rate of speed, something to that effect. And as they approached the light at Sub Base, the defendant speeded up the car. The light was green and she thought he was trying to beat the light, but he kept going faster and faster; that the car did swerve a little bit before they passed Mr. and Mrs. Corneiro, which is between the Nisky Church and Cancel's place. They were going thirty miles per hour and both of them testified that he must have been going twice as fast or at least sixty miles an hour. He cut in sharply on them then proceeded along the Harwood Highway over the top of the hill and jumped the sidewalk, struck two ladies, killing one instantly and injuring the other one severely and she died a few days later in the hospital. The car plowed into a cement wall, traveled two hundred feet more or less from the time he jumped the curb and ended up in the midst of a barbed wire fence. It seems that the horn was blowing on the car and Mrs. Warner got out and went across the street to Tropical Motors. Her head was bleeding and she talked to a young man there. She talked to Mr. Villa, whom she met.
"The defendant was seen with one hand on the wheel and another hand working down toward the dash board. No one knows exactly what he was doing. One witness testified that he thought he was trying to stop the horn from blowing. When he got out of the car it had stopped and another one said it hadn't. Anyway, he got out of the car and a witness testified that he saw him at the back of the car, saw a man at the back of the car. He walked across the street then ran, trotted, it was demonstrated, going in the same direction that he had been coming from in the car.
"Mr. Villa testified that he saw him get out of the car. He was asked about his looks, how did he appear, and he said he appeared a little 'sheepish. He didn't say anything.' And then the women were removed. The police came and investigated and so forth. That essentially is the prosecution's case."
The foregoing evidence was clearly sufficient to make out a prima facie case of involuntary manslaughter as charged in the information.
The defendant asserted in his defense that he was unconscious as the result of an epileptic seizure at the time of the accident and that he had no recollection of anything that occurred from a time before he approached the traffic light at the Submarine Base until about a half hour later when he found himself walking up the hill with his father to police headquarters at Fort Christian. It was testified on behalf of the defendant that early in the morning about a year before the accident he suffered a seizure which rendered him unconscious for a half hour during which his muscles were rigid and his eyes were staring. That afternoon he consulted Dr. Nikolai Kilk who was uncertain as to the cause of the seizure. The defendant did not drive an automobile for eight months thereafter. About two months after the accident, he was found unconscious in bed, frothing at the mouth, kicking his legs, after which he became rigid. Dr. Kilk admitted the defendant to the hospital for observation and examination and arranged for a consultation with Dr. Edwin A. Weinstein, a neurologist and psychiatrist.
Dr. Weinstein testified that he first saw the defendant shortly after the accident and then again after the second attack. He sent the defendant to a physician in Puerto Rico to have an electroencephalogram taken. The test suggested an epileptic disorder. The Puerto Rican physician reported the defendant's condition as possible grand mal epilepsy. Dr. Weinstein testified that there are three common types of epilepsy, namely, grand mal, petit mal and psychomotor, describing these seizures as follows: A grand mal seizure usually lasts about a half hour, during which the subject is unconscious, generally suffering twitching of the mouth, biting the tongue, clenching of the jaw and rigidity of the muscles. It is followed by a period of confusion. Dr. Weinstein did not in detail describe a petit mal seizure but stated it was very brief and another witness referred to it as a "junior grand mal seizure". A psychomotor seizure lasts from a few seconds to a minute during which the subject is not unconscious but does not have full consciousness or has a very fragmentary and obscure recollection, and does certain automatic acts, mainly ritualistic automatic movements, such as fumbling around with his clothes or going over and opening and closing a drawer, but does not do acts which require thinking out beforehand or purposive acts which have a high degree of selective technical skill. In contrast with grand mal seizures, psychomotor seizures are not generally followed by confusion, recovery being quite rapid. In response to a hypothetical question, Dr. Weinstein testified that if a motorist suddenly changed his manner of driving as did the defendant before the accident, it might possibly be due to a psychomotor seizure.*fn1
The defendant urges that the evidence offered on his behalf, which we have recounted, established the fact that he was suffering a psychomotor seizure at the time of the accident which rendered him unconscious and therefore not responsible for his acts. He further urges that it was error for the trial judge to reject this evidence since it was uncontradicted and was supported by the admitted fact that no skid marks were found on the highway or sidewalk at the scene of the accident. From this he would have it inferred that he was not applying the brakes at the time of the accident because of the alleged epileptic seizure.
The trial judge, however, took the view that the actions of the defendant, as shown by the Government, were inconsistent with the defense that he was suffering from such a seizure at the time of the accident and he made a definite finding that the defendant did not have a seizure of any kind. To quote the trial judge's oral finding:
"* * * I don't believe that the defendant had an epileptic seizure of any kind. I think that what actually happened was, the way I view the evidence, when he speeded up he went over that hill so fast that the car probably got beyond his control. The steering apparatus might have been loose or something. It zig zagged and hit the curb. That's why he didn't apply any brakes. And when the car was out of control and he saw the predicament that he was in, I think the man became frightened and left the scene of the accident, and that wasn't an aimless walk or trot. He went in the direction toward his home."
Our review of the evidence satisfies us that this was a possible finding on the evidence taken as a whole.
The defendant, however, urges that the finding against him was arrived at by applying an erroneous legal test in evaluating the evidence. His contention is that the trial judge imposed upon him the burden of proving that he was unconscious from an epileptic seizure at the time of the accident and found against him because he had failed to meet that burden of proof. In the course of the trial judge's findings, which were orally stated at the conclusion of the trial, he said that the question was whether or not the prosecution had proven every element of its complaint beyond a reasonable doubt. This was a correct statement of the law.*fn2 And as we have seen, the trial judge answered this in the affirmative. "Then," continued the trial judge, "the question is whether or not the evidence as adduced by the defense convinces the Court as a factual situation that he had an epileptic seizure of some kind on the night in question." This was an erroneous statement of the law for the defendant did not have the burden of convincing the court he had an epileptic seizure. On the ...