                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-1994

Gov't of the Virgin Islands v. Robinson
Precedential or Non-Precedential:

Docket 93-7675




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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                      N0. 93-7675


            GOVERNMENT OF THE VIRGIN ISLANDS

                           v.

                ROBINSON, JACKSON, a/k/a
                 HUGHES, LAUREN LEWELL

                                Jackson Robinson,
                                Appellant


On Appeal From the District Court of the Virgin Islands
          Division of St. Thomas and St. John
            (D.C. Crim. Action No. 93-00066)


                 Argued April 21, 1994

  BEFORE:   STAPLETON, ALITO and WEIS, Circuit Judges

             (Opinion Filed July 19, 1994)




                    Thurston T. McKelvin
                    Federal Public Defender
                    Stephen A. Brusch (Argued)
                    Asst. Federal Public Defender
                    P. O. Box 1327
                    Charlotte Amalie, St. Thomas
                    U.S. Virgin Islands 00804-1327
                    Attorneys for Appellant

                    Hugh P. Mabe, III
                    U.S. Attorney
                    James A. Hurd (Argued)
                    1st Asst. U.S. Attorney
                    U.S. Courthouse
                    5500 Veterans Drive, Suite 260
                    Charlotte Amalie, St. Thomas
                    U.S. Virgin Islands 00802-6924
                    Attorneys for Appellee
                       OPINION OF THE COURT




STAPLETON, Circuit Judge:



           Jackson Robinson killed Stedley Joseph on March 10,

1993 with a two-by-four he picked up while they were fighting.

Robinson was tried in the District Court of the Virgin Islands

for first degree murder.    The jury convicted Robinson of the

lesser included offense of voluntary manslaughter.    On appeal,

Robinson argues that the district court erroneously refused to

instruct the jury regarding the defenses of self-defense and

excusable homicide.   Upon reviewing the evidence presented at

trial, we believe the district court should have instructed the

jury regarding the self-defense defense.    We do not think the

district court erred, however, in refusing to instruct the jury

regarding excusable homicide.

                                 I.

           Robinson lived with his girlfriend Christabelle Joseph.

Christabelle was married to Stedley Joseph, the homicide victim,

but had been separated from him for two years and had filed for

divorce.   Robinson and Christabelle had a newborn baby daughter

named Talicia.   Robinson and Christabelle jointly cared for and

financially supported Talicia as well as three older children of

Christabelle's whom Stedley had fathered.     Stedley did not

contribute to the care or support of his three children.
            The unrebutted defense testimony established that

Stedley had a reputation for being violent and dangerous, and

that Robinson was aware of Stedley's reputation.    Before

Christabelle and Stedley separated, Stedley had beaten

Christabelle.    A 1990 domestic violence complaint Christabelle

filed against Stedley was entered into evidence, as was a 1991

restraining order against Stedley by the Territorial Court of the

Virgin Islands.    The 1991 restraining order prohibited Stedley

"from having any further contact with [Christabelle] and from

going to or entering [Christabelle's] residence," and also

enjoined Stedley from "harassing, molesting, abusing, assaulting,

contacting or intimidating [Christabelle], or subjecting her to

any form of violence, including but not limited to assault and

battery."    App. at 180-81.

            The unrebutted testimony of Robinson, Christabelle, and

one of their neighbors also established that after Christabelle

became pregnant with Robinson's child, Stedley came continually

to the yard outside Robinson's and Christabelle's residence and

verbally harassed and threatened them.   Stedley would try to

incite Robinson to argue or fight with him, but Robinson ignored

him.   Stedley threatened to kill Robinson.   Robinson stopped

walking the street at night because he feared Stedley.    According

to Robinson: "Christabelle's mother and father tell me to stay

away from the man, because if he met me at night, he can do

anything."   App. at 136.   The latest Robinson would travel

outside was 7:00 p.m., and only on days when he performed

Christabelle's part-time job cleaning a dentist's office.
Christabelle had experienced birth-related health complications,

and, while she was recovering, Robinson performed her job after

finishing his own day job as a construction worker.

            On Monday March 8, 1993, fifteen days after

Christabelle had given birth to Talicia, Stedley came to

Christabelle's and Robinson's residence while Robinson was not

home, and told Christabelle that he was going to kill her when he

met her on the road.    Christabelle believed that Stedley would

try to carry out his threat.    When Robinson came home, she and

Robinson went to the local police station, and filed a complaint

against Stedley.

            Two days later, on Wednesday March 10, at 5:30 p.m.,

after Robinson completed his construction job, he set out to do

Christabelle's job at the dentist's office.    Robinson took

Christabelle's and Stedley's seven-year-old daughter, Elaine,

with him.    As Robinson and Elaine were walking, they met Stedley,

whom Robinson described as a much larger man than he.     Robinson

testified that the following events then occurred.

            Stedley spoke to his daughter Elaine, and told her to

come with him to Robinson's and Christabelle's residence.

Robinson told Stedley to leave Christabelle alone.    Stedley then

said "I'm not in your place" and pushed Robinson with two hands

on Robinson's chest.    Robinson understood Stedley's statement

"I'm not in your place" to mean that Stedley "was not at my yard

where he normally comes to make trouble."    App. at 133.

            Robinson moved back, but Stedley followed and pushed

him again the same way.    Stedley put his hand near Robinson's
face, and Robinson was afraid that Robinson was going to "chock

in my eye."   Robinson said "Don't jack [push] me," and grasped

Stedley's hand, "guiding" it "so he wouldn't chock in my face."

Robinson then turned to get away from Stedley, and Stedley

"grabbed" at him and "burst my watch off my hand."   App. at 134.

          Robinson stooped to pick up his watch, and while he was

standing back up, Stedley "jack[ed] [Robinson] again with his

left hand in [Robinson's] chest," causing Robinson to stumble.

Id.   According to Robinson:
           Where I was stumbling to fall, there was a
           piece of stick. I took the stick, swing it
           at the man to keep him off.

               He didn't stop. He keep coming. This
          time he dive to grab me on my waist. When I
          swing again it hit him somewhere on his head,
          on his shoulder, and he went down. That was
          it.

                . . . .

               When I see the man fall, I drop the
          wood. He didn't move. I drop the wood. A
          police officer run down -- I was walking
          away. The police officer tell me he is a
          cop, lean up against a van.

                . . . .

               I only hit Mr. Joseph twice. He block
          it once. I swing at him and he block. Mr.
          Joseph figure he couldn't get on top of me
          from blocking, so he dive to grab in my
          waist, when I swing that way, and he come
          down low, and the wood hit him on his head
          and shoulder.

App. at 134-36.1

1
 Robinson's trial testimony was consistent with a sworn statement
he dictated to an investigating police officer, Roy Moorehead, on
the night of the fight, and which Moorehead read aloud at trial.
            Robinson's testimony that Stedley was the only one

doing any pushing, and Robinson's testimony that he hit Stedley

twice and then, after Stedley fell, that he dropped the two-by-

four and walked away, was contradicted by two government

witnesses.    Reginald Francis testified that he saw the fight from

a distance of fifty-yards at a bar where he was having a

cocktail.    Francis testified that he saw the two men pushing one

another.    Francis also testified that after Robinson hit Stedley

twice and Stedley fell to the ground, Robinson stood over the

prone Stedley, hit him three more times in the head, and then ran

away.   Francis, a health inspector and an auxiliary police

officer, then ran after Robinson and arrested him.

            Lisa Babb, a high-school student who had been walking

to "fraternity stepping practice" also saw the fight.     According

to Babb, both men had "pushed off each other."    App. at 93.    Babb

also testified that Robinson hit Stedley with the two-by-four

three times while Stedley was standing -- "really hard" the third

time on the back of Stedley's head.    Stedley then fell and "hit

on the concrete."    After falling, Stedley "didn't   move at all.

. . .   He couldn't move," but Robinson hit him two or three times

more around the neck and shoulder area.    Robinson then "threw the

stick and . . . ran."    App. at 88-89.

            After the fight, Stedley was taken to St. Thomas

Hospital where he remained unconscious due to brain swelling. The


Moorehead testified that the sworn statement Robinson dictated to
him also was consistent with an account Robinson had given
Moorehead during an earlier discussion.
attending neurologist testified that it appeared that Stedley had

been struck at least once in the head and once in the shoulder.

"It is possible that he may have been struck more than once"

either on the head or the shoulder, the neurologist testified,

"but I would not be able to tell that."    Stedley also was

bleeding from his nose and left ear, and had a "big scratch or

small cut, depending on how you want to look at it" on his left

leg.   After three days, the neurologist determined that Stedley

was brain dead.    With permission from Christabelle, the

neurologist tapered off Stedley's medication.    After twenty-four

days, Stedley's heart stopped, and he was pronounced dead.

According to the neurologist, "[t]he blow to the head is what

caused him to die."    App. at 39-42.

           At Robinson's trial, the district court instructed the

jury that if it found that Robinson was not guilty of first

degree murder, it might still find him guilty of either of the

lesser-included offenses of second-degree murder or voluntary

manslaughter.2    Robinson had requested that the district court

2
 Virgin Islands law defines murder as "the unlawful killing of a
human being with malice aforethought." V.I. Code Ann. tit. 14, §
921 (1964). First degree murder is

           All murder which--

              (1) is perpetrated by means of poison,
           lying in wait, torture or by any other kind
           of willful, deliberate and premeditated
           killing; or

              (2) is committed in the perpetration or
           attempt to perpetrate arson, burglary,
           kidnapping, rape, robbery or mayhem . . . .
instruct the jury regarding self-defense and excusable homicide,

but the district court did not give either of these instructions

to the jury.   We have not found in the record an indication of

the district court's reasons for refusing to give the self-

defense instruction; it also appears that Robinson's request for

the instruction was not opposed by the prosecution at trial.     We

think it likely that the district court refused to give the

excusable-homicide instruction because it believed a two-by-four,

as used by Robinson, was a "dangerous weapon" within the meaning

of the excusable-homicide statute and that this precluded that

statute's application.

                                  II.

            A defendant "is entitled to [a jury] instruction as to

any recognized defense for which there exists evidence sufficient

for a reasonable jury to find in his favor."    Matthews v. United

States, 485 U.S. 58, 63 (1988).    The government agrees with this

proposition, but contends that Robinson failed to present

evidence sufficient to justify either a self-defense or

excusable-homicide instruction under the laws of the Virgin

Islands.

                                  A.

           Virgin Islands law specifies that killing in self-

defense is lawful and justifiable homicide, and that self-defense


Id. § 922(a). Second degree murder is "All other kinds of
murder." Id. § 922(b) (1964). Voluntary manslaughter is the
"unlawful killing of a human being without malice aforethought
. . . upon a sudden quarrel or heat of passion." Id. § 924
(1964).
is a statutory right.     Government of the Virgin Islands v. Smith,

949 F.2d 677, 680 (3d Cir. 1991); V.I. Code Ann. tit. 14,

§§927(2)(C), 928, 43 (1964).       According to V.I. Code Ann. tit.

14, § 927:
          Homicide is justifiable when committed by--

          . . . .

                (2) any person--

          . . . .

                (C) when committed in the lawful
          defense of such person, . . . when there is
          reasonable ground to apprehend a design to
          commit a felony, or to do some great bodily
          injury, and imminent danger of such design
          being accomplished; but such person, . . . if
          he was . . . engaged in mortal combat, must
          really and in good faith have endeavored to
          decline any further struggle before the
          homicide was committed.


Whether or not a defendant acted in self-defense hinges on the

defendant's subjective beliefs and the objective reasonableness

of these beliefs. Smith, 949 F.2d at 684.
          If the defendant had a reasonable ground to
          believe and actually did believe that he was
          in imminent danger of death or serious bodily
          harm, and that deadly force was necessary to
          repel such danger, he would be justified in
          using deadly force in self defense, even
          though it may afterwards have turned out that
          the appearances were false.


Id. at 684-85.    The right of self-defense, however, "does not

extend to the infliction of more harm than is necessary for the

purpose of defense."     V.I. Code Ann. tit. 14, § 43 (1964).

             Thus, self-defense is a recognized defense under Virgin

Islands law, and the court may not refuse a defendant's request
for a self-defense instruction when the evidence reveals a basis

for the defense.   Smith, 949 F.2d at 681 (citing Government of

the Virgin Islands v. Salem, 456 F.2d 674 (3d Cir. 1972)); see

also Smith at 684 ("[W]e believe that a fair reading of the

evidence reveals a plausible case for self-defense which,

combined with the possibility that the jury misallocated the

burden of proof [on the self-defense issue], requires that Smith

be accorded a new trial.").3

          In Robinson's case, we think the record contained

evidence from which a reasonable jury could find that Robinson

acted in self-defense when he killed Stedley.    Stedley had a

reputation for violence of which Robinson was aware.    Stedley had

beaten Christabelle at least twice.    Apparently angered by

Christabelle's pregnancy, he had continually come to Robinson's

residence, and harassed and threatened Robinson and his family,

even threatening to kill Robinson.    Robinson refrained from

walking the streets at night for fear of Stedley.    Two days

earlier, two weeks after Christabelle had given birth, Stedley

had threatened to kill Christabelle if he met her "on the road."

          When Robinson met Stedley on the road, Stedley pushed

Robinson and told him "we are not at your place."    In context,

Stedley's statement could reasonably be taken to imply that at

that moment Stedley felt less restrained about acting violently


3
 As with other affirmative defenses in criminal cases, under
Virgin Islands law, once a defendant introduces evidence from
which the jury could find the elements of self-defense, the
prosecution has the burden of proving its absence beyond a
reasonable doubt. Smith, 949 F.2d at 680.
than when he usually spoke to Robinson at Robinson's residence.

Robinson backed away, but Stedley pushed him again.     Stedley put

his hand near Robinson's face in such a manner that Robinson

feared Stedley would "chock" him in his eye.     Robinson tried to

get away from Stedley but Stedley grabbed him in such a manner

that Robinson's watch "burst" off his wrist.     While Robinson was

picking up his watch, Stedley pushed him again, causing him to

stumble and fall.   Robinson picked up a two-by-four near where he

fell and swung it at Stedley to keep him away.     Stedley blocked

the two-by-four and kept coming.    He dove at Robinson's waist,

and Robinson swung the two-by-four again, this time striking a

fatal blow.

          If the jury believed Robinson's story, as it was

entitled to do, it reasonably could find that when Robinson

delivered the fatal "second-and-final blow" with the two-by-four,

he believed the blow was necessary to prevent Stedley from

causing him great bodily harm.     It could also conclude that

Robinson's belief was reasonable under the circumstances.

          The government offers three arguments why a self-

defense instruction would not have been appropriate.4    First, the

4
 The government also cites four opinions upholding murder
convictions in trial courts that had refused to give self-defense
instructions. None of the cases is remotely comparable to this
one.

          Whipple v. Duckworth, 957 F.2d 418 (7th Cir. 1992),
cert. denied, 113 S. Ct. 218 (1992), involved a juvenile who
killed his parents. Although the juvenile had suffered a
lifetime of daily abuse at his parents' hands, he did not claim
to have been in immediate danger when he killed them.
government argues that the testimony of Francis and Babb tended

to rebut Robinson's assertion that Stedley was the initial

aggressor, and also that Francis and Babb testified that Robinson

continued to strike Stedley with deadly force even after Stedley

no longer posed an imminent threat.   We think the government is

correct that if things happened the way Francis and Babb said

they happened, a reasonable jury could not find that Robinson

killed Stedley in self-defense.   But, whether things happened the

way Robinson said they did, or the way Francis and Babb said they

did, was for a properly instructed jury to decide.

          In Government of the Virgin Islands v. Salem, 456 F.2d

674 (3d Cir. 1972), Salem was tried and convicted for criminal

assault and battery for shooting and wounding two people.    Salem

requested a jury instruction based on the Virgin Islands Code

provisions on self-defense and lawful violence, but the district

          In United States v. Garcia, 625 F.2d 162 (7th Cir.
1980), cert. denied, 449 U.S. 923 (1980), the three defendants
testified that the victim started a fight with them. However, as
their testimony is recounted in the Court of Appeals' opinion,
the defendants apparently did not dispute eyewitness accounts and
medical evidence that after the initiation of the altercation,
the defendants chased the victim down a hallway, caught him, held
him down, and stabbed him forty-seven times. 625 F.2d at 165,
169.

          In United States v. Crowder, 543 F.2d 312 (D.C. Cir.
1976), cert. denied, 429 U.S. 1062 (1977), the defendant did not
testify that he shot the victim in self-defense; rather, he
denied shooting the victim at all.

          United States v. Wagner, 834 F.2d 1474 (9th Cir. 1987),
denial of post-conviction relief aff'd, 5 F.3d 544 (9th Cir.
1993), cert. denied, 114 S. Ct. 1110 (1994), involved a defendant
who had "steadfastly" claimed that his killing of a fellow prison
inmate was an accident that occurred while the defendant was
unlawfully resisting a prison guard. 834 F.2d at 1486-87.
court refused his request.   At trial, Salem had presented an

"amorphous defense."   456 F.2d at 675.   Nonetheless, we were

"persuaded that if the jury accepted [Salem's] testimony, the

self-defense and lawful violence provisions of the Code would

have been relevant." Id.
          Although other witnesses contradicted
          [Salem's] version of the shooting, [Salem's]
          credibility nevertheless was for the jury,
          United States v. Barber, 442 F.2d 517, 522
          (3d Cir. 1971), and there being a basis in
          his testimony for the application of the
          self-defense doctrine, the instructions
          should have been submitted as requested.
          Under such circumstances, "it is not the
          province of the court to accept or reject
          testimony tending to establish self-defense,"
          United States ex rel. Crosby v. Brierly, 404
          F.2d 790, 801 (3d Cir. 1968).

Id.

          The government's second argument is that even if

Robinson's account is assumed to be true, his account could not

convince a reasonable jury that he actually believed he was in

imminent danger of serious bodily harm.    The government belittles

the seriousness of Stedley's behavior, stating that Stedley's

pushing Robinson, grabbing his arm, and trying to tackle him were

"hardly life-threatening actions."   V.I. Br. at 10.   The

government, however, ignores the context of Stedley's actions.

Specifically, it ignores: (1) that Stedley had a reputation for

violence and had previously beaten Robinson's girlfriend, (2)

that Stedley had previously threatened to kill Robinson, (3) that

Robinson would not go out at night for fear of meeting Stedley,

(4) that two days earlier Stedley had threatened to kill

Robinson's girlfriend if he met her "on the road," (5) that
Robinson and his girlfriend had taken the threat seriously and

had reported it to the police, and (6) that Robinson had just met

Stedley "on the road" and that Stedley had threateningly reminded

him that they "were not at Robinson's place."

          The government also contends that a self-defense

instruction would have been inappropriate because "[a]t no time

. . . did [Robinson] ever indicate that he was in fear of death

or serious bodily injury during the incident."    V.I. Br. at 10

(emphasis in original).   We disagree.    According to the trial

transcript, Robinson testified that he was afraid that Stedley

was going to "chock" him in the eye.     While he did not explain

specifically what he meant by "chock,"5 we think a reasonable

jury could conclude from the context that Robinson feared being

gouged in the eyes with sufficient force to cause them

substantial injury.

          More importantly, we cannot agree with the government

that an instruction on self-defense should be given only where

the defendant expressly states on the witness stand that he

possessed a fear of serious bodily injury.     We think Robinson's

testimony that Stedley had threatened to kill him, that Robinson

took the threat seriously enough to stop walking the streets at

night, that Stedley was much larger than Robinson, and that

Stedley had suddenly come upon Robinson, pushed him, prevented


5
 A glossary of Virgin Islands dialect states that the verb
"chook," pronounced choke, means "to puncture, jab, pierce, prod,
or prick" or "to receive an injection." Lito Valls, What a
Pistarckle!: A Glossary of Virgin Islands English Creole (lst ed.
1981).
his withdrawal and was lunging in an effort to tackle him,

provides a sufficient basis for a jury to find that Robinson was

in fear of serious bodily injury during the attack.

          Third, the government argues that even assuming

Robinson's account were true, and even assuming Robinson feared

serious injury, Robinson's use of the two-by-four when both men

were unarmed was "unreasonable and excessive and invalidated his

self defense claim under Virgin Islands law."    V.I. Br. at 10,

citing Government of the Virgin Islands v. Frett, 14 V.I. 315

(1978).   The government is correct that under Virgin Islands law

no more force may be used in self-defense than is reasonably

necessary to repel imminent danger.   However, as the case cited

by the government correctly states, "[w]hether the force used

. . . is excessive is a question of fact and depends upon the

circumstances of each case."   Frett, 14 V.I. at 323.   We think a

reasonable jury could find that Robinson's use of the two-by-four

was reasonably necessary under the circumstances.

          Robinson testified that he backed away from the much

larger Stedley but that Stedley kept coming.    When Stedley pushed

Robinson and Robinson fell, the two-by-four was the only means at

hand by which Robinson could keep Stedley away.    After Robinson

swung the two-by-four at Stedley the first time, Stedley blocked

it and tried to tackle Robinson.   A reasonable jury might well

think that the failure of Robinson's first blow to deter
Stedley's continuing advance demonstrated the necessity of his

second, apparently fatal, blow.6

                               B.

6
 We do not understand the government to urge that use of a deadly
weapon against an unarmed assailant necessarily precludes a self-
defense instruction. Since serious bodily injury and even death
can be inflicted by an unarmed assailant, the law of self-defense
recognizes that use of a deadly weapon to deter such an assailant
is justified where there is a reasonable fear of such injury. As
the court put it in People v. Estes, 469 N.E.2d 275 (Ill. App.
Ct. 1984):


          [T]he law does not require that the aggressor

          be armed in order that the use of a deadly

          weapon in self-defense be justified.    Where

          it is clear that the aggressor is capable of

          inflicting serious bodily harm on the

          defendant without the use of a deadly weapon,

          and it appears that he intends to, then it is

          not necessary that the aggressor be armed for

          the defendant to employ deadly force in self-

          defense. . . .


               . . . .

               . . . When one is threatened by a person
          who carried out his threats on a previous
          occasion, he does not have much time to
          reason out his response or judge precisely
          how much force is necessary to repel the
          threatened attack. . . . The question in a
          case such as this is whether on the basis of
          quickly unfolding events the defendant's
          response was reasonable under the exigencies
          that existed at the moment.

Id. at 283-84 (citations and quotations omitted).
          The Virgin Islands statutory definition of excusable

homicide reads as follows:
          Homicide is excusable--

            (1) when committed by accident and
          misfortune, or in doing any lawful act by
          lawful means, with usual and ordinary
          caution, and without any unlawful intent; or

            (2) when committed by accident and
          misfortune, in the heat of passion, upon any
          sudden and sufficient provocation, or upon a
          sudden combat, when no undue advantage is
          taken, nor any dangerous weapon used, and
          when the killing is not done in a cruel or
          unusual manner.

V.I. Code Ann. tit. 14, § 926 (1964).   Because the undisputed

facts of Robinson's case are inconsistent with paragraph (1) and

because we think Robinson admitted using a "dangerous weapon"

within the meaning of this statute, we conclude that the trial

evidence provided no basis for a jury instruction regarding

excusable homicide.

          The Virgin Islands excusable-homicide statute does not

define "dangerous weapon," nor does any judicial precedent give

further content to the term as it is used in that section.     We

find assistance, however, in the fact that the Virgin Islands'

statutory definition of excusable homicide, as well as its

definition of justifiable homicide, appear to be a restatement of

the common law.   See Richard Singer, The Resurgence of Mens Rea:

II-Honest But Unreasonable Mistake of Fact in Self Defense, 28

B.C. L. Rev. 459, 472 (1987).   Not surprisingly, therefore, the

Virgin Islands' excusable-homicide statute is quite similar to

excusable-homicide statutes in several states, some of whose
courts have addressed the meaning of "dangerous weapon" in those

statutes.

            The states of California, Florida, and Mississippi, for

example, have statutory definitions of excusable homicide

identical or virtually identical to that of the Virgin Islands.

See Cal. Penal Code § 195 (West 1988); Fla. Stat. Ann. § 782.03

(West 1992); Miss. Code Ann. § 97-3-17 (1972).   The Florida

Supreme Court construes "dangerous weapon" as it is used in

Florida's statute to mean "any weapon that, taking into account

the manner in which it is used, is likely to produce death or

great bodily harm."   State v. Smith, 573 So.2d 306, 310 (Fla.

1990).   Similarly, the Mississippi Supreme Court has construed

the term "dangerous weapon" in a predecessor to the current

Mississippi statute to mean a weapon "used with such violence as

would ordinarily result in the infliction of serious injury."

Ayers v. State, 60 Miss. 709, 713 (1883) (ruling that a "billet

of wood" was a dangerous weapon when used to strike the deceased

in the head and therefore precluded an excusable-homicide jury

instruction).   See also People v. Dugger, 4 Cal. Rptr. 388, 393

(Cal. Dist. Ct. App. 1960) (bar stool was "dangerous weapon" as

used, and precluded excusable-homicide instruction).   The Florida

and Mississippi definitions also comport with the common law

definition of a deadly weapon in the related context of the

"deadly weapon doctrine."   See Wayne R. LaFave & Austin W. Scott,
Jr., Handbook on Criminal Law (1972).
          A deadly weapon is one which, from the manner
          used, is calculated or likely to produce
          death or serious bodily injury. Thus whether
          a weapon is deadly depends upon two factors:
          (1) what it intrinsically is and (2) how it
          is used. If almost anyone can kill with it,
          it is a deadly weapon when used in a manner
          calculated to kill. Thus the following items
          have been held to be deadly weapons in view
          of the circumstances of their use: . . . iron
          bars, baseball bats, bricks, rocks, ice
          picks, automobiles, and pistols used as
          bludgeons.


Id. at 537 (footnotes and quotation omitted).

          We think it is reasonable and appropriate in construing

the term "deadly weapon" in the Virgin Islands' excusable-

homicide statute to adopt the Florida and Mississippi courts'

construction of their states' excusable-homicide statutes.

Adopting their definitions, we do not think it is difficult to

determine whether Robinson's use of the two-by-four constituted

use of a "deadly weapon."   When Robinson picked up the two-by-

four and swung it at Stedley, it became a weapon which was likely

to cause death or serious bodily injury.   Therefore, we hold that

the district court did not err in refusing to instruct the jury

regarding the defense of excusable homicide.
                              III.

          We will reverse the judgment of the district court and

remand the case for a new trial.
