APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION (D.C. Crim. No. 74-55).
Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Dissenting.
VAN DUSEN, Circuit Judge.
Appellant contends that the July 19, 1974, judgment and commitment entered on the jury verdict finding defendant guilty of violating 20 V.I.C. § 504,*fn1 must be vacated because (1) it is based on insufficient evidence, and (2) the receipt of inadmissible evidence of speed requires at the least a new trial. After careful consideration of the record before the district court, we reject both contentions and affirm the district court judgment.
The facts surrounding this tragic homicide, occurring about 8 P.M. on Sunday, May 12, 1974, on St. Croix, U.S. Virgin Islands, are disclosed in the evidence, considered in the light most favorable to the verdict, as follows: Defendant Genous Caines*fn2 was driving a 1969 Pontiac Ventura west on the main highway of St. Croix, called Centerline Road, which is a blacktopped, two-lane highway running in a straight east-west direction for several miles and having a speed limit of 40 m.p.h. At this approximate time, Wilfred Allick, a passenger in another car, was being driven east from the town of Frederiksted to his home near Centerline Road.*fn3 When the car containing Mr. Allick came to the vicinity of his house, it pulled off to the lefthand shoulder on the north side of the road.*fn4 Mr. Allick was seen emerging on the lefthand side of the car, waiting for the car to continue proceeding easterly, and beginning to cross the road, going from north to south. N.T. 44. In the near vicinity was a street light illuminating the road area in which Mr. Allick was walking. N.T. 44. Mr. Allick was observed by a Mr. and Mrs. Garnet, who were driving west to east behind the car which had carried Mr. Allick. N.T. 43. About the time when Mr. Allick was seen by Mr. and Mrs. Garnet as reaching the mid-line of the road and entering into the east-west lane, they could hear a car engine approaching like a "rumble" toward them and saw headlights "coming from the west." N.T. 46. This car seen by the Garnets was the 1969 Pontiac operated by defendant. N.T. 50. Mr. Allick had reached a point approximately in the center of the westbound lane when he was struck and killed by the appellant's vehicle. Mr. Garnet, who had been driving for eight years, estimated his own speed at 30 miles per hour and that of the defendant's car at approximately 70 miles per hour when it hit Mr. Allick's body, which flew up in the air. N.T. 45, 48, 66, 67. Mr. Allick's body then hit the windshield of defendant's car and rolled off to a stop on the shoulder of the westbound lane. Defendant returned to the scene and said to Mr. Garnet, "I didn't see the man." N.T. 50.
Dr. Glenn, a pathologist and the medical examiner for the St. Croix Department of Health and Department of Law, testified that his duties included the investigation of deaths of unknown origin, including any type of death not occurring within a medical institution such as "death on arrival cases." He stated that he had performed approximately 100 autopsies a year since 1957 and that he performed an autopsy on the body of Allick on the morning of May 14, 1974. His "external findings were basically those of severe and multiple injury involving almost the entire extent of the body, including the head right down to the feet and it consisted mainly of massive bruises, deep lacerations and multiple fractures of the bones, from the skull, chest, legs, arms and so forth" (N.T.21). He testified that death resulted from several severe, multiple injuries and that each of at least four separate injuries could have independently caused Allick's death.*fn5 Further, he testified as follows concerning Allick's injuries:
". . . from the type of injuries, they were very characteristic of automobile injuries.
"In this instance basically our findings are based on the body itself, not on an examination of the car or any truck or what have you, but the body itself. It was my impression that the body was struck from the front, just the front part of the body. One of the first injuries was the legs being struck, fractured, in a position that indicates he was struck from the front, the fractures being all displaced backwards, and then the other injuries due to the body being knocked, sometimes they fly over the car, sometimes they spin off to the side . . ..
". . . let's assume that you are going at a relatively slow speed, you knock down an animal or human being or what have you, the car is more likely to pass over the body and you have signs of tire marks and scraping of the skin and so forth. Higher speeds you strike an animal or human being, in most cases the body will fly away from the car from the severity of the impact and will go over the top or just spin off to one side of the car depending on whether it is a right or left bumper.
"But since the bumper is usually the first thing that hits anybody that is upright, the bumper lifts the leg off the pavement and throws the body over the top of the car. And it would be unusual for a very high speed car to pass over somebody if the person was to the right because the weight of the body is from your waist up.
"So since that is the heaviest part of the body and you are hitting the legs first, you tend to go over the top of a car. That is why you get very characteristic fractures usually at the knee level or slightly below the knee from the bumper impact." N.T.33-36.
A witness, Mr. Joseph, observed Allick alight from the car on the north side of Centerline Road. Allick had started across the road when a car "struck the man. The man flew in the air. . . . After he fly in the air, he stay in the air a little while and hit him again in the windshield and knock in the windshield again and then roll off to the side" (N.T. 167).*fn6
The appellant first contends that testimony as to speed introduced by the prosecution should not have been admitted, variously contending that the witnesses gave opinions without stating the facts on which the opinions were based; that the witnesses were never shown to have any ability to gauge the velocity of ...