dissenting
The defendant in the instant case was sentenced to ten years of imprisonment on each of the two counts of the Information, the terms to run concurrently. This sentence cannot be regarded as other than harsh, indeed, extreme. Ordinarily, a sentence within the maximum limits (and ten years is the maximum on each count under the Virgin Islands’ Code) is within the discretion of the sentencing judge. But in weighing whether error is prejudicial, a harsh sentence may “turn the balance”. United States v. Hoffman, 137 F.2d 416, 422 (C.A. 2, 1943); see also, United States v. Trypuc, 136 F.2d 900, 902 (C.A. 2, 1943). Such a judgment of sentence should be affirmed only when it can be said that “the whole trial is conducted with the most scrupulous exactness”. Amendola v. United States, 17 F.2d 529, 530 (C.A. 2, 1927); United States v. Pagano, 224 F.2d 682, 683 (C.A. 2, 1955), cert. den. 350 U.S. 884.
The majority makes an attempt to vindicate the trial procedure in the instant case. The affirmance is based on the view of the majority (which I do not share) that on the evidence no reasonable jury could have reached any other result notwithstanding the obvious prejudice, only a single example of which, namely, the prosecuting attorney’s open*666ing speech, later dealt with, is specifically discussed by the majority.
I put to one side the troublesome question, how far an appellate court should allow its own appraisal of the guilt of the defendant to obviate recognized errors below. A delicate balance, at least, must be maintained. For it is not our judgment of guilt which satisfies a defendant’s right, however one-sided the evidence may be against him, to have his guilt determined by a jury.
Two examples of prejudice, other than the prosecutor’s opening speech, preliminarily command attention.
First, all of the testimony with respect to an abandoned vehicle was the rankest hearsay. The harm, in my opinion, is that the conduct so attributed to the defendant and his alleged friend superficially reflects the behavior of one who possesses valuable property which he has not paid for or which he desires to be rid of because possession carries its own incrimination. Such evidence would certainly affect the frame of mind of the jury in weighing all the admissible evidence.
Second, an FBI agent was permitted to testify that he visited the defendant while the latter was in custody, warned him of his constitutional rights, including his right to counsel, and requested him to make a statement, which the defendant refused to do. This testimony was expressly solicited by the prosecuting attorney, who undoubtedly knew what the agent’s answer would be. Perhaps the explanation is that counsel, as well as the Court, believed that such evidence was relevant, and comment could be made. We have set that error right. Government of the Virgin Islands v. Bell, [6 V.I. 456], 392 F.2d 207 (decided March 27, 1968).
The stated testimony is a significant prejudicial factor which must be weighed in the balance. We cannot gainsay the common inference that a person who is accused of *667crimes but whose tongue clings to the roof of his mouth, has guilty reason to keep silent.
In United States of America ex rel. Staino, — F.2d— (decided December 29, 1967), we held that “the use of a so-called ‘tacit admission’ ” of guilt, arising from the failure of a defendant to deny an accusation of guilt or to speak out with reference to such an accusation, rendered a conviction “essentially unfair and, therefore, violative of the 14th Amendment”.
When we add the prejudicial speech of the prosecuting attorney, it seems to me that there was lacking here a fair and impartial trial by jury, because by this speech the jury was pre-conditioned and pre-disposed to find the defendant guilty.
In his opening speech the prosecuting attorney said in part:
“May it please the Court, Mr. Conklin, ladies and gentlemen — as you may or may not know already in your experience as jurors, an opening statement is merely a statement by counsel with respect to what we expect to prove through the testimony and the evidence. We have various witnesses here today that we expect will prove to you these general facts. I say general because I will not go into detail. But, I would like to outline to you basically what this is all about before we start adducing evidence' from the witness stand so that you will be better able to follow the evidence.
“On February 25, 1965, a gentleman from Brooklyn, New York, Mr. Martin Cain, was in a dining room in the Sheraton Hotel in San Juan. And on that occasion he used his American Express Company credit card that rightfully belonged to him and had been issued to him by the American Express Company which he used on many previous occasions; and he does not remember receiving that card back that night. Mr. Cain was on a trip through the Caribbean and subsequently, upon reaching Curacao, he realized that he no longer had his American Express Company card; at which time he immediately advised the American Express Company in New York, and subsequently the American Express Company put out bulletins to all of their retailers who honor American Express Company cards and advised them that this particular card *668was either lost or stolen. However, before the bulletin reached the hands of the retailers all over the world, the defendant — Alexander James Turner — somehow turned up with Mr. Cain’s card; and in the interim, before the retailers were advised, he made various charges in various parts of the United States, Puerto Rico, and the Virgin Islands ivith this American Express Company card representing himself to the retailers as Martin Cain.
“And the evidence will show that Alexander James Turner travelled from Puerto Rico on March 10, 1965 in the company of a confederate by the name of Meliah Bell who also had a stolen or lost American Express card issued in the name of Meyer Odence; and the evidence will show to you that Meliah Bell and the defendí ant, Alexander James Turner, started at one end of Main Street and charged all the way down Main Street. Specifically, in this information we have Mr. Turner charged with making a charge at Lescale on March 11, 1965 for $193.30. And I should interject here that Mr. Turner and Mr. Bell came here on March 10 and with their shopping bags full, they went back to San Juan on March 10 and came back here on March 11 and repeated the same routine in different stores. So, we have two dates involved — March 10 and March 11,1965.” (Italics supplied.)
It is a great deal easier to reach the conclusion that the defendant is guilty if one is told beforehand, as this jury was, in the prosecutor’s opening speech, that the defendant had run up a large bill on Mr. Cain’s card by making many purchases “in various parts of the United States, Puerto Rico, and the Virgin Islands”. (Italics supplied.) Indeed, the prosecutor, with the lack of restraint of one who, free of testimonial oath, put the defendant and another (Mr. Bell, whose conviction we have reversed for other reasons) in a conjoint scheme, and declared that they “started at one end of Main Street and charged all the way down Main Street”. The prosecutor then knew he could offer no such evidence.
' Realistically speaking, the prosecutor’s opening speech was not merely harmful because it referred to “other crimes”. It was particularly prejudicial because it was precisely the kind of information which would influence the *669jury to believe that the two incidents involved in the Information were but part of a series of criminal adventures of the defendant and Bell to bilk the local merchants or Mr. Cain or the American Express Company. And it stated circumstances which would obviate for the jury the ultimate question in the case. We have been sensitive to this sort of prejudice in the past. Cf. Government of the Virgin Islands v. Oliver, [5 V.I. 568], 360 F.2d 297 (1966); United States v. Tucker, 267 F.2d 212, 214 (1959).
Moreover, stripped of the prejudicial remarks and hearsay, the case, as presented, demanded that the trial court specifically instruct the jury that it must find, as a prerequisite to a finding of guilty, that the defendant knew or should have known he had no right to use the charge card on the two occassions involved in the information. Not only was such instruction not given, but the case was presented on the theory that the crime was complete if the defendant represented himself to be Mr. Cain. At least the prosecutor so presented the matter, and even the majority states that “if the defendant was the user of a credit card that did not belong to him, his wrongful intent would seem inevitable.”
The trial judge did not, in his charge, attempt to define the legal issues to the jury, or to present the issues to the jury in terms of the evidence of the case. To the contrary, he simply stated in terms of the applicable law, that if it found the defendant knowingly and designedly by false and fraudulent representation or pretense defrauded any person of property in the value of $100, it must find the defendant guilty; if it did not so find, it should find him not guilty. The court then proceeded to render an instruction on “criminal intent” which, in my opinion, was plainly wrong:
“Now as to criminal intent. You are instructed that tó 'constitute criminal intent, it is not necessary that there should exist an intent *670to violate the law or to do a wrong. Criminal intent exists whenever a person intentionally does that which the law declares to be a crime”.
This flies in the face of Morissette v. United States, 342 U.S. 246 (1952). It is immaterial whether the instructions are “wrong” or “ambiguous and confusing”. If wrong, we know the jury did not reach its verdict upon a proper application of the law. If ambiguous and confusing, we cannot say that the jury reached its verdict upon a proper application of the law. In either case, the jury verdict cannot stand.
I cannot accept the majority view that “as a whole” the charge passes muster, either with respect to its coverage of the case or the law applicable thereto.
Nor can I subscribe to the majority’s view that no reasonable jury could have reached any conclusion other than guilt under the evidence adduced at the trial. The government showed only that Mr. Cain, to whom American Express issued its credit card, missed his card several days after he had used it in San Juan. There was no evidence that the defendant (or even his “friend”) was at that place at that time. There was no evidence as to how the defendant came into possession of the card. There is a suggestion (and it was argued to the jury) that the signature on the card was not that of Mr. Cain. Without attempting an analysis of the circumstances which would permit an inference of illegal possession or use, I believe that it is, nevertheless, an inference which only the jury could draw. Undoubtedly, the flight after a later attempt to use the card, in San Juan, suggests guilt, but this does not detract from the fact that a jury, to convict the defendant of the two earlier uses in St. Thomas for which the defendant was on trial, would have to conclude that he obtained the card under circumstances indicating that he knew or should have known that he was not. authorized to use it at those times.
*671For the reasons stated I would reverse the judgment of sentence of the District Court in the interest of justice, and remand the cause with directions to grant a new trial.