APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN Crim. No. 76-184.
Adams, Rosenn, and Hunter, Circuit Judges.
Theodore Brown appeals his conviction by a jury in the District Court for the Virgin Islands, Division of St. Thomas and St. John, of violating the Virgin Islands' drunk driving statute, V.I. Code Ann. tit. 20 § 493 (Cum. Supp. 1975). After reviewing the record, it seems clear to us that the defendant was, as the jury stated in their verdict, "operating a vehicle while his ability to do so was impaired by alcohol." Yet as much as there is a legal duty to clear public highways of the dangers of drunk drivers, we are unable to affirm the conviction in this case because of a critical defect in the verdict of the jury. We reverse.
On October 12, 1976, Theodore Brown was charged in a three-count information for driving a car:
Count I: while under the influence of intoxicating liquor after having been previously convicted for the same offense on February 27, 1975, in violation of Title 20, Virgin Islands Code Section 493.
Count II: without first having obtained a valid Virgin Islands Operator's license to do so . . .
Count III: in such negligent manner as to endanger persons and property . .
Brown pled guilty to Count II and was tried before a jury on January 13, 1977, on the other two counts. The evidence supports the charge that the defendant had 0.13% of alcohol in his system while operating an automobile at the time and place alleged. The trial judge's charge to the jury on Count I went as follows:
To assist you we have prepared forms of verdicts for you . . .. We could have given you just a blank pad and writing material and told you to write down what verdict you returned or reached but we find it easier to prepare verdicts for you which represents the only alternatives. In preparing them, however, and giving them to you be assured that no one is attempting to suggest to you what your verdict should be because as I said before the verdict is the sole responsibility of the ladies and gentlemen of the jury.
Now, with respect to the first count, there are only two forms, one says, the one I am holding in my left, we find the Defendant not guilty. This is the one you will use if after you consider all the evidence you find either he was not or you have reasonable doubt of whether he was either intoxicated or driving while his ability was impaired by the consumption of alcohol. If on the other hand you do find beyond a reasonable doubt that that was his state and condition then you use this other verdict which says we find the Defendant, Theodore Brown, guilty of the crime charged to wit driving under the influence of alcohol or operating a motor vehicle while his ability to do so was impaired by alcohol.
The jury acquitted the defendant of Count III but found him guilty of Count I. The jury's prepared verdict form read:
We, the Jury, impanelled and sworn to try the guilt or innocence of the defendant above named find the defendant Theodore Brown guilty of the crime charged, to wit, driving under the influence of alcohol, or operating a vehicle ...