UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: June 7, 1974.
GOVERNMENT OF THE VIRGIN ISLANDS
EDWIN CALLWOOD, APPELLANT
APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN Criminal No. 71-1972.
Aldisert, Adams and Garth, Circuit Judges.
Opinion OF THE COURT
ALDISERT, Circuit Judge.
This appeal from a final judgment of sentence presents questions as to the correctness of jury instructions on transferred intent and self-defense. After a three day trial a jury of twelve returned a verdict of first degree murder. Pursuant to 14 V.I.C. § 923(a) defendant was sentenced to life imprisonment.
Defendant, a Virgin Islands Deputy Marshal, shot and killed his ex-wife with whom he was living. While the fact of his shooting the decedent was undisputed, testimony of the prosecution and the defendant concerning the circumstances surrounding that shooting was in direct conflict. The prosecution's chief witness, Holland, testified that he was driving the victim home in her car when she recognized the defendant approaching in another vehicle from the opposite direction. Although they attempted to evade the defendant, Holland testified that defendant pulled along side of their car and fired a shot missing both of them. The chase continued until Holland reached the end of a dead end street. Holland then testified that he ran from the car, hurled rocks at the defendant, and ran into nearby bushes. He then testified that he saw the defendant proceed to the victim's car, point the gun in the car and shoot. The next thing he heard was the victim exclaiming: "Oh, God, Edwin, you shot me"!*fn1
Defendant testified in his own behalf, denying firing into the victim's car during the chase. Defendant's summary of his testimony with respect to the events that took place at the dead end street discloses:
At the scene the Defendant claims he pulled off the road on a slant parallel to and some thirty-odd feet away from the decedent's car. As he pulled up, Holland quickly exited from the car he was driving. As the Defendant emerged from his vehicle, Holland hurled rocks or stones at the Defendant, hitting him several times. The Defendant moved away from his car to draw fire away from the car. The Defendant demanded the identity of Holland and how he had come to have the decedent's car. He further demanded that Holland come forward and have a man-to-man talk. The Defendant moved toward the decedent's car. Heated, profane words were exchanged. Holland threatened to take the Defendant's life that night in a once-and-for-all confrontation. As the Defendant approached, Holland circled the decedent's car towards the passenger's side, cursing and threatening the Defendant in the darkness. The Defendant fired a shot in the air as his vision of Holland was obscured. Thereafter, Holland reached quickly into the car toward the dash or glove compartment. The Defendant fired quickly towards the moving hand or arm.
A voice suddenly cried out, "Oh God, Edwin, you shot me," and for the first time, according to the Defendant, the Defendant knew someone other than Holland was on the scene.
Appellant's brief at 7. Defendant then fled from the scene and was subsequently arrested.
Defendant argues that the court's instructions on transferred intent were somehow unduly favorable to the Government and were detrimental to him. Initially the court charged:
It may be that a person shoots at Peter but instead kills Paul. If the circumstances under which A shoots at B would be such that had B been killed it would have been a crime, then it would be equally a crime if A, unlawfully intending to kill B, killed C and to the same extent that it would be a crime had B been actually killed to the same extent it would be a crime if C is killed. So that if you should find after your examination of all the facts of this case that the defendant fired the shot intending to hit Holland, and if you should also find that he shot and killed Holland, in those circumstances he would have been guilty of murder or manslaughter, then he would likewise be guilty of the same offense, having killed Nyra, for his unlawful intent to do harm to Holland would be transferred to Nyra and he could not escape culpability merely because the wrong person got killed, if the circumstances were such that his killing of the person he intended to kill would have been unlawful. Here again this is if you so find. And in instructing you I do not suggest what you should find one way or another, for, as I have repeatedly stated, you are the triers of the facts. You are the judges of the facts. These instructions have been given to you merely to guide you as to the applicable rules of law.
At the conclusion of the charge the defendant specifically objected:
I think that the connection between accidental killing and transferred intent is not adequately explored. That is, the example given was of the case where an individual had an intent to kill one but wound up killing another. I think the opposite situation might well be illustrated, namely, that if this was not intended or unlawful intent of his original intention. I simply think that the example chosen is overly suggestive. That is to say, it ignores the testimony that the defendant did not intend to kill A but rather to wound A but he wound up killing B. In that situation that version of the facts have not been given -- an example which would clarify the full scope of the relationship between transferred intent and accidental killing.
The Court responded by supplementing its charge in the precise manner defendant requested.
I also instructed you that if a person intending to kill A killed B instead to the extent that he would have been guilty if he had killed A, he is guilty if he killed B. It goes without saying if the circumstances under which a person accidentally killed B exists and would have been the same if he had killed A, the accident is there in any event.
N.T. 608. Thus, any possibility of suggestiveness in the initial charge was cured by the court's supplemental charge.
Defendant next argues that the court's self-defense charge was cast in terms of justifying the homicide, was not clarified in terms of the factual posture of this case, and was misleading in the sense that it did not specifically refer to Holland's conduct as that which should be considered. Additionally, appellant contends that the court should have charged on the effect of a good faith but mistaken exercise of the right of self-defense. We have carefully reviewed the court's initial and supplemental charges and conclude that, as given, the charge accurately summarized the applicable law as codified in 14 V.I.C. § 927 (2) (C).*fn2
We have considered all the contentions of the defendant and find them to be without merit. The judgment of the district court will be affirmed.