106 P. 538 | Okla. Crim. App. | 1910
We commend the action of counsel for the state in filing in this case the following confession of error:
"Comes now the state of Oklahoma, by Fred S. Caldwell, as Counsel to the Governor, and represents to this honorable court *375
that, as appears at page 24 of the record in the above-named cause, the trial court instructed the jury, in paragraph No. 6 of the instruction, as follows: `If you believe from the evidence that the defendant did not, on or about the date and in the county and state aforesaid, deliver, directly or indirectly, any whisky to the the said W.N. Ellis, or if you believe that the defendant did not receive or expect to receive any money in exchange therefor for his own use and benefit, or for the use and benefit of any one else, for whom he might have been at that time employed, or if there is a reasonable doubt of the guilt of the defendant, then it is your duty under the law to render a verdict of not guilty.' To the giving of the above instruction the defendant duly excepted at the time. This honorable court has, in the case of Weber v. State,
In Weber v. State this court said:
"Under the second specification of error, counsel for defendant contend that, in giving instruction No. 6, the court misdirected the jury to the prejudice of the substantial rights of the defendant. Instruction No. 6 is as follows: `If you believe from the evidence that the defendant did not, on the date and in the county and state aforesaid, deliver to the said S.W. Barnhill any intoxicating liquor, to wit, whisky, or if you believe that the defendant did not receive any money for said whisky, or if there is a reasonable doubt in your minds as to the guilt of the defendant, then it is your duty, under the law, to return a verdict of not guilty.' To the giving of this instruction defendant excepted. Counsel in their brief argue that: `This is a negative instruction, pregnant with mischief and prejudice as to the defendant. In effect, it deprives the defendant of the benefit of the presumption of innocence until proven guilty, a right guaranteed by the statute, and imposes upon him the burden of proving his innocence. The instruction impresses us as pregnant with insinuations of the guilt of the defendant, and manifestly unfair in its phraseology. Such a rule is antagonistic to the fundamental principles of law, and is as dangerous as it is novel. It is a positive legal right appertaining to every accused person, whether guilty or innocent, that *376
he shall not be condemned for a criminal offense in a judicial trial until and unless the evidence produced against him shall be legally sufficient to prove his guilt beyond a reasonable doubt. The law only requires the defendant to raise a reasonable doubt as to his guilt.' They cite in support of their contention the cases of Shoemaker v. Territory,
"In the case of Horn v. Territory, supra, Justice Burwell, delivering the opinion of the court, in part, says: `The evidence of the first witness for the territory might be sufficient to "reasonably" overcome the presumption of the defendant's innocence. If so, from that very moment, during the remainder of the trial, the defendant would stand stripped of his legal presumption. That would not do. Our statutes prohibit the jury from forming or expressing an opinion until the case is finally submitted to them for their consideration. No matter how strong the evidence may be against the defendant, the law, by reason of the presumption of the defendant's innocence, prohibits the jury from forming any opinion as to his guilt or innocence until after the case is finally submitted. In a criminal case a defendant is presumed to be innocent until he is proven guilty, by competent evidence, beyond a *377
reasonable doubt, and this presumption never ceases during the trial. A defendant's friends may forsake him, but the presumption of innocence, never. It is present throughout the entire trial; and, when the jury go to their room to deliberate, the "presumption of innocence" goes in with them, protesting against the defendant's guilt. And it is only after the jury has given all the evidence in the case a full, fair, and impartial consideration, and have been able to find beyond a reasonable doubt that the defendant is guilty as charged, that the presumption of innocence leaves him.' In Hampton v. State, 1 Tex. App. 652[
"It is not essential to an acquittal that the jury should believe that the defendant did not deliver said whisky or that defendant did not receive any money for said whisky, or that the defendant was not guilty. The law presumes that he did not deliver said whisky, and that he did not receive money for said whisky, and the law presumes that he is not guilty as charged until his guilt has been established by competent evidence, beyond all reasonable doubt. In Johnson v. State, supra
[29 Tex. App. 151[
The doctrine of the Weber Case has been approved by this court in Hedden v. State,
The confession of error is sustained, and the judgment of conviction is reversed, and the cause is remanded for a new trial.
DOYLE and OWEN, JUDGES, concur. *379