Biggs, Kalodner and Freedman, Circuit Judges.
This is an appeal by Ernesto Carmona from a conviction of first degree felony murder and a sentence of life imprisonment. The killing took place on the Island of Saint Croix in the Virgin Islands in the course of an alleged robbery. See Title 14, Virgin Islands Code, Section 922(a) (2).*fn1
In the late afternoon of August 6, 1968, Carmona, Lydia Vasquez, Carmen Cruz and Carlos Hardouin left their common residence together by automobile. There followed an evening of drinking at several bars.Sometime shortly after midnight, the group arrived at a bar owned and operated by Mattias Delerme. After a period of further drinking, between two and three o'clock on the morning of August 7, these four were the only patrons remaining in the bar. Lydia Vasquez became ill and went outside to sit in the car. Later, Carmona and Carmen Cruz also came outside. Carmen Cruz got into and started the car while Carmona took a shotgun from the trunk and reentered the bar.*fn2 Carlos Hardouin testified that he and Carmona had resolved to rob Delerme. He further testified that Carmona, once back inside the bar, ordered Delerme not to move and shot and killed him when the latter tried to hide behind a refrigerator located behind the bar. Carmona fled the bar. Hardouin took some of the victim's money and followed.*fn3 When Carmona and Hardouin had rejoined the two girls, all four drove out into the country where Carmona disposed of the shotgun and a blood stained quilt. Carmona solicited the aid of his brother-in-law in helping him to escape from the island. Shortly thereafter the police arrested Carmona and the others.
Carmona has never denied that he perpetrated the killing. Indeed, his counsel virtually admitted that Carmona had shot Delerme by stating to the jury in his opening argument that "* * * after you hear all the evidence, I'm sure that the only question that you will have to decide is to [sic] what degree of homicide is Ernesto Carmona guilty of." The theory of Carmona's defense is that his intoxication created a reasonable doubt that he was capable of formulating the specific intent to commit robbery, and, consequently, that he could not properly be found guilty of first degree murder.
There is substantial though not overwhelming evidence to support Carmona's defense. Patrolman Denzel Christian testified that Carmona had "a smell of alcoholic beverage" about him approximately two hours before the shooting. Ernest Hodge, another policeman, reported seeing Carmona drinking less than an hour before the killing. Lydia Vasquez testified that Carmona had "a few drinks" at home the morning of August 6, that he had "a few drinks" at each of two bars during the evening of August 6, and that he had "a good bit" to drink at the victim's bar in the early morning hours of August 7 directly prior to the shooting. Carlos Hardouin testified that Carmona had "a few beers" at the house and consumed more than 18 "gin drinks" over the course of the evening leading up to the shooting. On the other hand, none of these witnesses would state on the witness stand that Carmona had behaved in a drunken manner.
In urging that reversible error was committed by the court below, Carmona makes two contentions, both involving the charge to the jury. First, he argues that the instructions defining the elements of robbery and informing the jury of the materiality of the intoxication issue were inadequate and confusing. Second, Carmona contends that the trial court erred in not charging the jury that it might acquit Carmona of first degree murder but find him guilty of second degree murder or of voluntary manslaughter.
Carmona's counsel requested the following charge: "You are instructed that in order to find the defendant guilty of murder in the first degree as charged you must find beyond a reasonable doubt that defendant shot and killed Mattias Delerme while in the act of perpetrating or attempting to perpetrate the crime of robbery. Robbery is defined as the unlawful taking of personal property in the possession of another, from his person or immediate presence and against his will, by means of force or fear. In order for the defendant to commit the crime of robbery, the defendant must have formulated the specific intent to commit that crime.
"The defendant has raised the defense that he was in a state of voluntary intoxication at the time the alleged homicide took place.
"You are instructed that an act committed while in a state of voluntary intoxication is no less criminal because committed while in such state. You are further instructed that you may take into consideration the fact that the defendant was intoxicated at the time in determining whether defendant had the specific intent to commit the crime of robbery. * * *" (Emphasis added).
Instead, the trial court charged: "Now robbery is the unlawful taking of personal property in the possession of another from his person or immediate presence and against his will by means of force or fear. Thus the elements of the crime which you must find in order to convict the defendant are, first, you must find a murder. That is, an unlawful killing of a human being. Second, you must find that the unlawful killing took place while there was a robbery in progress or attempt to commit robbery.* * *
"Now, as to intoxication. The law provides that no act committed while in a state of voluntary intoxication is less criminal because committed in such a state. However, you may take into account the fact that the accused may have been intoxicated at the time in determining the purpose, motive or intent with which the act was committed. * * *" (Emphasis added).
The charge requested and the charge given are quite similar save in two respects. First, the requested charge expressly stated that there need be a finding of "specific intent" to commit robbery, whereas the charge given makes no reference to "specific intent". Second, the charge requested notes the relevance of intoxication evidence "in determining whether defendant had the specific intent to commit the crime of robbery." The charge actually given, however, did ...