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Government of Virgin Islands v. Toto

filed: January 29, 1976.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
SCHILLER TOTO, APPELLANT



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS (D.C. Crim. No. 74-145).

Aldisert, Weis and Garth, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

ALDISERT, Circuit Judge.

Appellant Schiller Toto was convicted of distributing marihuana in violation of the Virgin Islands Controlled Substances Law, 19 V.I.C. ยง 604(a)(1). He testified at his trial and, in response to the prosecutor's questioning on cross-examination, admitted that he had previously pleaded guilty to the misdemeanor of petit larceny. Defense counsel timely objected. The government seeks to justify the questioning on the ground that the prior conviction was brought out to impeach appellant. In the alternative, it argues that any error was harmless because the trial judge charged the jury to disregard the testimony concerning the prior conviction. We hold that appellant's conviction for petit larceny does not come within the ambit of the rule, long established in this circuit, that a witness may be impeached by evidence of a prior conviction only if the conviction is for a felony or for a misdemeanor in the nature of crimen falsi. United States v. Evans, 398 F.2d 159, 164 (3d Cir. 1968); United States v. Montgomery, 126 F.2d 151, 155 (3d Cir.), cert. denied, 316 U.S. 681, 86 L. Ed. 1754, 62 S. Ct. 1268 (1942). We also hold that the error in allowing evidence of the prior conviction was not cured by the trial judge's charge, and requires that appellant's conviction be reversed.*fn1

The facts are neither complicated nor controverted. During appellant's testimony at the trial the following colloquy occurred:

Q. [The prosecutor:] Sir, you stated that at one time you lost your job at Sparky's when you were arrested.

A. [Appellant:] Yes.

Q. Now, are you referring to this arrest?

A. No.

Q. A previous arrest?

A. Yes.

Q. With respect to that arrest, sir, were you convicted of a crime?

MR. ALEXIS: Objection.

THE COURT: I overrule the objection. The ...


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