Commonwealth v. De Francesco
248 Mass. 9
Mass.
1924
Check Treatment
Rugg, C.J.

The sole questions on these exceptions are whether a defendant in a criminal case is entitled to instruc*13tians to the effect that the presumption of innocence is evidence in his favor, and that that presumption remains with the defendant throughout the trial until it is overcome by evidence or until the verdict is reached. Requests to this effect were preferred in various forms of words.

The presumption of innocence never has been held to be evidence in this Commonwealth. It expressly was held that the “ presumption of innocence is not a matter of evidence ” in Commonwealth v. Sinclair, 195 Mass. 100, where Mr. Justice Sheldon spoke for the court. The opinion upon this point is brief but positive. The supporting citations there collected at page 110 from courts of sister States demonstrate that the words used and already quoted were intended to express the precise meaning conveyed by their natural signification. That such a presumption is not evidence is plainly implied from the statement of Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. 295, at page 320: “ All the presumptions of law independent of evidence are in favor of innocence.” That statement could not have been made if the presumption of innocence were evidence. That sentence marks a distinction between the presumption and evidence. In Duggan v. Bay State Street Railway, 230 Mass. 370, 378, it was decided that a presumption was not evidence but a rule about evidence. Nothing was decided contrary to this current of our decisions in Commonwealth v. Anderson, 245 Mass. 177. That case merely held that a defendant was ordinarily entitled to an instruction to the effect that he was presumed to be innocent at the opening of the trial. That was a necessary conclusion from our decisions, as is pointed out in the opinion. Nothing is required beyond a plain statement that the presumption of innocence means that the finding of an indictment by the grand jury or the record on an appeal on a complaint from a finding of guilty in a district court are not to be regarded as circumstances tending to criminate the defendant or creating against him unfavorable impressions, and that he is not to be found guilty upon suspicion or conjecture but only upon evidence produced in court. A simple statement of that nature fully protects rights of a defendant in this particular. *14Instructions concerning the burden of proof and the amount of evidence necessary to convict of course must be given, but they relate to subjects wholly different from the presumption of innocence. Commonwealth v. Webster, 5 Cush. 295, 320.

That the presumption of innocence which, exists in criminal cases is evidence was plainly held in Coffin v. United States, 162 U. S. 664, decided on May 4, 1896. The denial of a request for a categorical instruction to that effect was held not to be error in Agnew v. United States, 165 U. S. 36, decided January 11, 1897, and at page 52 it was said respecting that request that “ the court might well have declined to give it on the ground of the tendency ... to mislead.” Coffin v. United States was discussed and apparently narrowed in its scope on this point. Again, in Holt v. United States, 218 U. S. 245, substantially the same words were used in deciding that there was no error in denying a request that the “ presumption of innocence is evidence in the defendant’s favor.” Agnew v. United States is cited as authority and reference is made to § 2511 of Wigmore on Ev. (2d ed.), but no reference is made to Coffin v. United States. It would seem that on the point, whether the presumption of innocence is evidence, the law as now declared by the Supreme Court of the United States does not differ from our own as hitherto declared and here reaffirmed.

Sound reasoning and a considerable body of authority appear to us to support our rule that the presumption is not evidence. See, in addition to cases cited in Commonwealth v. Sinclair, 195 Mass. 110, and in Wigmore on Ev. (2d ed.) § 2511, and notes, “The Presumption of Innocence in Criminal Cases ” by J. B. Thayer in Preliminary Treatise on Evidence, 551-576, 3 Chamberlayne on Ev. § 1175c, Lisbon v. Lyman, 49 N. H. 553, 563, State v. Linhoff, 121 Iowa, 632, 636, Price v. United States, 132 C. C. A. 1, State v. Brauneis, 84 Conn. 222, 229.

The requests for rulings were rightly refused in so far as not covered in the charge, and the instructions given were not erroneous.

Exceptions overruled.