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In re Brown

decided: February 23, 1971.


Reargued October 13, 1970.

Hastie, Chief Judge, Ganey and Stahl, Circuit Judges. On Reargument: Hastie, Chief Judge, Ganey, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Seitz, Circuit Judge (concurring). Ganey, Circuit Judge (concurring).

Author: Freedman


FREEDMAN, Circuit Judge.

The Juvenile and Domestic Relations Division of the Municipal Court of the Virgin Islands found that Kenneth Brown, a 14-year-old juvenile had violated the Virgin Islands statute against petit larceny and committed him to the Department of Social Welfare of the Virgin Islands until he should attain the age of 18 years. The District Court denied his petition for leave to appeal and its action is before us for review.


On September 22, 1968, Claude Mahon, the complaining witness, on returning from a swim at Pelican Cove, St. Croix, noticed that his wallet had disappeared from the trousers he had left in his automobile. In an immediate search for the culprit, two of Mahon's companions encountered Kenneth Brown near the beach. After some questioning they searched him and discovered a ten dollar bill and two one dollar bills in his pocket, the same denominations as those missing from Mahon's wallet. They elicited the statement from Brown that he had obtained the money from two other boys. Accompanied by Mahon, who had by now rejoined them, they took Brown to the police. The police refrained from any questioning until the arrival of Brown's uncle, whom they had summoned. Before they began their questioning the police advised Brown of his right to remain silent and to have an attorney, but they failed to warn him that any statements he might make could be used against him. The trial judge later found that Brown had been "substantially told of his rights."

Brown was thereafter charged with petit larceny in violation of 14 V.I.Code § 1084.*fn1 He was tried before the Juvenile and Domestic Relations Division of the Municipal Court, where he was represented by court-appointed counsel. At the close of the government's case and again at the conclusion of the trial, defendant's counsel moved for dismissal on the ground that the government had failed to prove the charge beyond a reasonable doubt. The trial judge found defendant guilty in circumstances which make it uncertain that he applied the standard of proof beyond a reasonable doubt.*fn2

Defendant petitioned the District Court for leave to appeal from the judgment of guilt and commitment thereon, claiming that the evidence before the Municipal Court was inadequate to establish his guilt beyond a reasonable doubt and that the statements and other evidence taken from him were obtained without adequate notice of his constitutional rights. The petition was filed pursuant to 4 V.I.Code § 33, which in general authorizes appeals from the Municipal Court to the District Court as of right but requires that in juvenile and domestic relations cases "they may be taken only if specially allowed by the district court."*fn3

The District Court denied the petition for leave to appeal and a subsequent petition for rehearing in which for the first time defendant called attention to the recent decision of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), which he claimed required a mandatory appeal as a matter of due process.


Defendant contends that it was an abuse of discretion for the District Court to deny him leave to appeal in view of his serious claims of the insufficiency of the evidence against him, the inadmissibility of his statements and the evidence seized, and the failure to apply the standard of proof of guilt beyond a reasonable doubt. The District Court gave no reasons for its denial of leave to appeal, and we therefore are without knowledge of the considerations which it must have believed outweighed these serious claims, the last of which was later vindicated on due process grounds in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Were we now required to decide whether the District Court abused its discretion, a remand would be necessary in order to obtain a statement of the reasons for its action.*fn4

There is, however, a more fundamental issue than the narrow question whether there was an abuse of discretion. It is whether the statutory provision on which the District Court undertook to exercise discretion violates the Bill of Rights contained in § 3 of the Revised Organic Act of the Virgin Islands.*fn5 Although the Bill of Rights is conferred by act of Congress, it expresses the congressional intention to make the federal Constitution applicable to the Virgin Islands to the fullest extent possible consistent with its status as a territory.*fn6 A claim of violation of the Bill of Rights, therefore, amounts in substance to a claim of unconstitutionality, which ordinarily is reached only if a case cannot otherwise be decided. Here, however, there are considerations which compel a decision even if the issue is treated as a constitutional one. The issue has been fully argued. A decision now which is limited to the question of abuse of discretion may bring the issue to us again in this very case. The issue is a recurrent one in general, and the District Court should not continue to engage in the delicate and often difficult function of exercising its discretion if such appeals are as of right and it has no discretion to deny them. Its function would be deranged if it were overhung by the threat of invalidity of the statutory ...

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