*1 Gen., Pierre, for Dale, Atty. Richard Asst. Meierhen- Mark Y. appellee; plaintiff Dakota, Plaintiff of South STATE Gen., Pierre, on brief. Atty. ry, Appellee, FOSHEIM, Justice. Chief HOLMES, Timothy J. J. Holmes was con- Timothy Appellant Appellant. in viola- receiving property stolen victed alleg- appeals, He 22-30A-7. tion his refusing erred ing that trial court presumption on Dakota. Court of South Supreme affirm. innocence. We 10, Sept. Briefs Considered cross-examined At 31, 1983. Aug. Decided . testify but did not State’s witnesses settling his evidence on behalf. present instructions, refused the trial court Dakota request include appellant’s 1-4 presump Instruction Jury Pattern It reads: innocence. law our It is a fundamental crime person that a accused innocent, to be every throughout tion follows the accused in this case the trial. So stage of the innocent, presumed to be defendant through him follows and this and must prosecution stage of the you until are continue and abide a rea- beyond from the satisfied guilty. he is sonable doubt Relying reh. den. that over- determined (1979), the trial court such an whelming did, how- The court unsuitable. burden ever, to establish proof rested reasonable appellant’s guilt beyond determina trial court’s Despite the overwhelming evidence tion that that SDCL guilt, appellant right a matter entitled him as a jury innocence. SDCL action in a criminal until innocent doubt as to of a reasonable and in case While this to be is entitled of inno Elston, Public Pennington Co. sets out John T. statute accompanies each Office, defend- which City, for Rapid Defender’s it does proceeding, criminal appellant. ant and
105 mandate an Slaughter State, not that such instruction be 630 P.2d (Wyo. 520 addition, in given every case.* failure instruction requested
give
The judgment is affirmed.
does
in and of
of innocence
itself violate
Constitution.
MORGAN,JJ.,
DUNN
concur.
must
...
a failure
be evaluated in
[S]uch
WOLLMAN, J.,
specially.
concurs
light
totality
of the circumstanc-
HENDERSON, J., dissents.
including all the
instructions to
es—
jury,
counsel,
arguments
whether WOLLMAN,
(concurring
Justice
special-
weight
of the evidence
over-
was
ly)-
whelming, and other relevant factors—to
I agree with Justice Henderson that the
determine whether
re-
requested
have
giv-
instruction should
been
ceived a constitutionally fair trial.
en.
In view of the
Whorton,
441
Kentucky v.
at
99
however,
guilt,
defendant’s
sonable doubt. instruction practically Such secured the benefit rule, general I dissent. As a trial courts innocence to the defendant. Kindle v. applying appellate should avoid an analysis State, Ark. S.W. 827 to a instruction on the requested presump- Commonwealth, Cane see S.W.2d particular, of innocence. In this trial (Ky.App.1977). This considered court’s actions amounted to reversible error. conjunction in with the instruction on neatly This case fails to fall within the proof burden of deter- court’s ambit of over- mination that evidence was has whelming, inno- rendered instruction on cause statutory cast his in a mold rather not absolutely necessary. While our than form as was the in constitutional review the convinces us record that focus of Whorton. As the United States trial court was in its correct assessment Supreme recently proclaimed: Court has so that was overwhelm- “It that are free to elementary states however, believe, we ing, that it is better in provide their criminal greater practice for the routinely instruction to be justice than the Federal Constitu - in given “[Tjrial criminal case. Ramos, tion requires.” California judges caught should not get up sophisti- in U.S. -, L.Ed.2d - cated in reasoning employed by other courts (1983). fastens itself majority opinion The order determine when the failure to premise. Ap onto a constitutional federal a presumption of innocence pellant steadfastly statutory violative of the in- opin Constitution. Give the rights were violated. The ” Opper- struction as have done.... is refuted State v. position ion’s * Indeed, City of Sioux Fails v. was in the record shows that also 79 S.D. proof N.W.2d 100 where trial on burden of and reasonable instructed charge, court refused a similar under SDCL view of the entire was 23-44-5, 23A-22-3, predecessor of SDCL necessary that instruction should this said, we given. competent been Jurors to sit contends the instructions a trial would know did make clear that innocence continued with defendant tion of presumption of innocence attends an accused beginning end of the trial. to the progress the trial. (Emphasis at 101. 79 S.D. N.W.2d jury was told outset of the bar, supplied) In the case at the record does the defendant was be innocent clearly show whether was told at any and that he was not presumption. the outset about the evidence of his innocence. An examination this for, error to fail (S.D.1976), it is reversible
man, 247 N.W.2d
the facts
any
case. Under
indeed:
case,
presumption of
where the
no
this court
There
doubt that
can
in-
mentioned in
was not
innocence
provide
an individual
power
has the
jury,
argument
or in
struction
protection
the state
greater
under
*3
instruction amounted
failure to
the
States
constitution than does
process
due
inade-
to either a denial of
under the federal consti-
Supreme Court
rever-
requires
and
quate representation,
Hass, 1975, 420
Oregon v.
tution.
sal.
714,
1215,
this state’s criminal law. The trial court judge
was both the jury. Appel- and the
lant’s statutory rights suffered under the
trial court’s dual role.
innocence throughout the trial is historic: history
“The of this presumption can be
traced from Deuteronomy through Roman
law, English Law, Common and the com-
mon law of the United States. Coffin v.
States,
(1895).”
tal right, inherent in this Nation’s
justice, does not come easy for me. That
the accused is presumed not to be innocent
was and is found in fascist and tyrannical Hitler, Stalin,
cultures led Adolf Joseph Minh,
Ho Ayatollah Chi Khomeini. I
highly question that the patriots
American Revolution or the men who died
on Omaha Beach or Ridge Heartbreak
would favor a fluid approach innocence,
sumption of a right so basic to way American of life.
I would reverse and remand for a new
trial wherein the trial court would be di-
rected as the majority opinion would
it: “Give the instruction have al-
ways done ....”
notes
perni
in its most
sumption of innocence
However,
again
I
emphasize
manipulation
a
of
aspect amounts to
cious
of
upon
a violation
state
appeal
based
legal
to achieve
principles
fundamental
de-
statute. SDCL
favorable
State
apparently
results
action is
fendant
a criminal
basic
expense
but
is
be innocent until
(See
v.
the accused.
Estelle
guaranteed
as to
501,
case of
reasonable doubt
(1976), 425 U.S.
Williams
guilt
whether his
princi
126.) When that
48 L.Ed.2d
entitled to be
Since
impressed upon
the minds
ple
integral
the criminal
part
23A-22-3 is an
could become mere
jurors,
Dakota,
law in
a trial court would be
presumes
formality
jury
in which the
remiss
jury
inform a
choose
would thus deterio
and its function
guilt
presumption of innocence when
ratifying the crimi
into one simply
rate
opportunity.
provides
Although it is estab
investigation.
nal
presumption of innocence
lished
relied
114 N.W.2d
as
(Tay
favoring
is not evidence
opinion,
distinguishable
by
*
lor v.
[436
the case at bar
because
a vital
468]), it remains
“at
jury
court
in Wolf informed
serves to
legal rhetoric which
pre
trial the defendant was
outset
automatically
jury not
inform the
he was not
sumed to be innocent
Its purpose
prosecution.
agree with
evidence of his inno
evenhanded
fair and
also is to afford
cence.” The trial court herein failed
accused of crimi
persons
to all
treatment
appellant’s SDCL
ever inform the
offenses,
or innocence
so that
nal
of innocence.
adduced at
exclusively
based
French,
Ill.App.3d
v.
People
trial.
481,482
Appellate
N.E.2d
Illinois
held:
Court
428 N.E.2d
Ill.Dec.
Carpenter, 57
Moreover,
post- Whorton deci
other
If,
here, the
985.
defense counsel does
trial court must
have held that
it
be ten-
sions
offer this
should
on the
or the court
prosecution,
dered
Cabral, 410
A.2d
State
We do
innocence. See
should
its own motion.
Mullen, 35 Ill.Dec.
People v.
(R.I.1980);
or not
question
reach
* Likewise,
sumption
innocence was
therein.
P.2d
is distin
pre
guishable
an instruction on the
Ill.App.3d