Staley, Chief Judge, and Maris and McEntee, Circuit Judges.
The defendant John Lake appeals from his conviction in the District Court of the Virgin Islands of murder in the first degree. By information, the Government charged that the defendant on April 10, 1965, in violation of 14 V.I.C. § 922(a) (1), with malice aforethought, did willfully, deliberately and with premeditation kill one Leonore Richardson Lake by stabbing her several times about her body with a deadly weapon, a pocket knife, thereby inflicting mortal wounds from which she died on that day. The defendant entered a plea of not guilty to the charge of murder in the first degree. His case was tried by the court without a jury. At the close of the Government's case the defendant moved for dismissal of the information on the ground that the Government had not proved beyond a reasonable doubt that the defendant had killed Leonore with malice aforethought, or willfully, deliberately and with premeditation. The Government, treating the motion as one for judgment of acquittal, opposed it. After argument the District Court denied the motion. No evidence was offered on behalf of the defendant. The District Court entered a judgment convicting the defendant of murder in the first degree and sentenced him to life imprisonment. This appeal by defendant followed.
The facts established by or fairly to be inferred from the evidence in the case, which as we have said was solely that produced by the Government, may be summarized as follows:
The defendant, an alien, had been married to Leonore, a Virgin Islands citizen. They lived with Leonore's mother, Lyra Lloyd, at No. 22 Commandante Gade in Charlotte Amalie, St. Thomas. Two or three days prior to the killing the defendant and Leonore had had a disagreement about papers which apparently involved the defendant's status as an alien. Leonore had told him she was "not fixing any papers". Shortly before the killing Leonore had instituted an action for divorce and when confronted with the papers by the defendant had told him: "John, I don't know anything about it. Don't ask me. You have the paper; read it."
On the afternoon of the fatal day the defendant was at No. 22 packing his suitcase. Leonore said she was going shopping and when the defendant asked to go along she told him there would not be room in the car for him. When she returned he was still packing his suitcase in the bedroom. There was testimony by neighbors that about 6:15 P.M. they saw Leonore and the defendant sitting on the gallery of No. 22, Leonore reading a comic book and the defendant looking at his wife. Mrs. Lloyd testified that she and her daughter Leonore were sitting in the living room watching television about 7 P.M. The defendant came out of the bedroom with his suitcase, passed through the living room and said: "Lee, I will come back." He did return about 8 P.M. and asked Leonore to let him stay for the night because the next day was Sunday and he would be "going for good". Leonore told him to put his cot in the living room and sleep there and he took his cot to the living room as she requested.
The area which served as Leonore's bedroom was partitioned off from Mrs. Lloyd's sleeping quarters by a screen which did not reach the ceiling, the door of which Mrs. Lloyd could reach over and unhook on the inside. Mrs. Lloyd went to bed about 10:30 P.M. and shortly thereafter Leonore retired to her bedroom. Mrs. Lloyd observed the defendant standing in Leonore's bedroom; a child was in the bed with her. Mrs. Lloyd heard Leonore say "John, leave me alone. I have to say my prayers. I have to go to church Sunday morning." Mrs. Lloyd also heard a tapping sound but no other conversation except her daughter's prayers. Mrs. Lloyd then fell asleep.
There was testimony by Sydney George, a friend of the defendant, that on the night of the killing, after he had gone to bed, the defendant had appeared at his window, called him and asked him to lend him a file. When told that he could not get the file until tomorrow the defendant told him tomorrow wouldn't do and left.
About 11:30 P.M. Mrs. Lloyd was awakened by Leonore's crying "Oh, God, John. You're going to kill me." She jumped out of bed, opened the door of the screen and saw Leonore in bed and the defendant standing over her, his right hand raised and his left hand on her throat. Leonore cried "Help, Mother. Help, John kill me." Mrs. Lloyd pushed him aside, picked Leonore up from the bed and walked through the living room screaming for help with Leonore leaning against her shoulder. Neighbors heard her screams, they broke open the front door and Mrs. Lloyd came out with Leonore who fell to the floor at the doorway. The defendant followed them out of the house, holding an open knife in his right hand, jumped to the street and ran away. Dr. Lu of the staff of the Knud Hansen Memorial Hospital arrived with an ambulance about 11:50 P.M. and found Leonore lying dead on the floor of the gallery outside the door of No. 22. There were 43 stab wounds on her body, 19 in the chest, 5 on the face, 5 on the right hand, 13 on the left hand and one on the left thigh. There was a laceration of the subclavian vein and two lacerations on the trachea, any one of which could have caused her death. In addition two stab wounds in the chest were deep enough to cause a massive hemorrhage in the lung cavity. The nature of the wounds indicated that they had been caused by a sharp pointed instrument. Leonore died as a result of massive hemorrhage caused by the stab wounds.
At 11:40 P.M. the defendant appeared at police headquarters in the fort in Charlotte Amalie and volunteered the statement that "he and his wife, Leonore Lake, had an argument and he took up his things to leave and both of them caught up in a fight. He held her hand and told her to come and go. She picked up a fork. He lost control and picked up a knife and stabbed her." A police detective dispatched to investigate found a folding pocket knife, four inches long and one inch wide in size, in an open gut on the west side of Commandante Gade on the direct route between No. 22 and police headquarters. There was some blood on it and it was closed. Mrs. Lloyd identified it as belonging to the defendant. Dr. Lu testified that it could have caused the incisions in Leonore's body. The police detective also searched Leonore's bedroom the same night but found no fork there.
Title 14 V.I.C., §§ 921 and 922, defines the crime of murder, as follows:
Murder is the unlawful killing of a human being with ...