Kalodner, Freedman*fn* and Adams, Circuit Judges.
On September 4, 1968, the Municipal Court of the Virgin Islands,*fn1 following trial, found the defendant Eugene H. Smith not guilty on amended Criminal Complaint No. 1307-1967 which charged Smith "did wilfully and unlawfully fail to file reports and pay gross receipts taxes for the period January 1966 up to and including June 1968", in violation of 33 V.I.C. §§ 43, 44 and 53.
In acquitting Smith, the trial judge specifically ruled in a Judgment*fn2 entered January 17, 1969, that Smith was subject to the provisions of the tax statutes but that the evidence failed to establish wilful and unlawful failure to comply with them.
On May 21, 1960 -- some nine months following his acquittal -- Smith was again brought to trial on Criminal Case No. 661-1969 which charged him with wilful and unlawful failure "to file reports and pay Gross Receipts Taxes for the period January 1968 up to & including February 1969" in violation of 33 V.I.C. §§ 43, 44 and 53. The case was tried, by stipulation of counsel, on the record adduced at the September 4, 1968 trial. Smith was found guilty on this second trial of "wilful and unlawful" failure to report and pay gross receipts taxes for the period January 1968 to February 1969 as charged in Criminal Case No. 661-1969 and fined $50.00 in a Judgment*fn3 entered by the Municipal Court on May 21, 1969. On June 5, 1969 Smith appealed this Judgment to the District Court of the Virgin Islands, Division of St. Thomas and St. John. That Court affirmed the Municipal Court's Judgment of May 21, 1969 in an Order*fn4 dated and entered July 28, 1970. The instant appeal followed.
Smith contends here, singly and solely, as he did in the Virgin Islands courts, that the mechanical and rental business which he conducts derives its income from services and skills performed by him on a personal and individual basis, and accordingly he is not subject to the Virgin Islands gross receipts tax under the exemption clause of 33 V.I.C. § 43(a)*fn5 which provides that the gross receipts tax which the Section imposes "shall not apply to artisans, fishermen, tradesmen, or professionals * * * selling their skills or services on an individual and personal basis. * * *"
The evidence adduced at the trial established that Smith, in the conduct of "Smitty's Mechanical and Rental" business, (1) engaged in performing excavation, drilling and blasting operations in private and public road work, excavating cisterns, and clearing housing construction sites of rocks and debris; (2) in performing these tasks he employed no less than 13 men at any time and they included engineers, bulldozer and backhoe operators, mechanics, welders, foremen and unskilled labor; (3) he simultaneously worked on several separate jobs at any given time; and (4) he rented to others his bulldozers and other mechanical equipment and supplied their operating personnel.
The recited evidence supports (1) the Municipal Court's rejection of Smith's contention that he sold his "skills or services on an individual and personal basis" within the exemption clause of Section 43(a)*fn6; and (2) its challenged finding that Smith was guilty of wilful and unlawful failure to report and pay the Gross Receipts Tax as charged in Criminal Case No. 661-1969, here involved. It may be noted, parenthetically, it is apparent that the Municipal Court in finding Smith guilty on May 21, 1969 of wilful and unlawful failure as charged in the cited Criminal Complaint, had in mind that in disposing of Criminal No. 1307-1967, on September 4, 1968, it had ruled that Smith was subject to the Gross Receipts Tax.
Despite our stated conclusions, we are however, constrained to set aside the District Court's Judgment of July 28, 1970 affirming the Municipal Court's Judgment of conviction on May 21, 1969 on Criminal Case No. 661-1969, for these reasons:
On September 4, 1968, the Municipal Court, following trial, found Smith not guilty of violation of the Gross Receipts taxes "for the period from January 1966 up to and including June 1968", as charged in Criminal No. 1307-1967.
On May 21, 1969, the Municipal Court found Smith guilty of violation of the Gross Receipts Tax "for the period January 1968 up to & including February 1969", as charged in Criminal Case No. 661-1969.
The sum of the foregoing is that after Smith was acquitted at his first trial of wilful and unlawful failure to comply with the Virgin Islands Gross Receipts Tax statutes "up to and including June 1968", he was convicted at his second trial of wilful and unlawful failure to comply with the stated taxes up to and including June 1968, inasmuch as the period of violation covered by the second trial extended from January 1968 to February 1969.
In light of these circumstances, we are of the opinion that Smith's constitutional guarantees under the double jeopardy provisions of § 3 of the Virgin Islands Bill of Rights,*fn7 and of the Fifth Amendment to ...