State v. Dix

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-072

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Windham Circuit
                                  }
Steven B. Dix                     }
                                  }          DOCKET NO. 185-1-89 WmCr


    In the above entitled cause the Clerk will enter:


     The court's failure to instruct the jury that the presumption of
innocence is "a piece of evidence that should be considered with all the
other evidence" was not error.

     The court's instruction here was as follows:

            The Defendant is not under any obligation to prove
          that he is innocent.  The burden is on the State to
          prove beyond a reasonable doubt if it can that he is
          guilty.

            One is presumed to be innocent and you are bound in
          your consideration of the evidence to give him the
          benefit of that presumption and to remember that the
          State must overcome the presumption of innocence by
          proof to your satisfaction that he is guilty beyond a
          reasonable doubt.

             This presumption continues throughout the trial and
          throughout deliberations, right down to the time when
          all of you agree upon a verdict, whatever it may be, be
          it guilty, not guilty or no verdict.


     Although the presumption of innocence was characterized as being "a
piece of evidence" a long time ago, Belock v. State Mut. Fire Ins. Co., 108
Vt. 252, 262, 185 A. 100, 105 (1936), the concept that a presumption is
evidence was recognized as a "false doctrine" and discarded in Tyrrell v.
Prudential Ins. Co. of America, 109 Vt. 6, 23, 192 A. 184, 192 (1937).  In
1957, however, the Legislature enacted 13 V.S.A. { 6502, which reads:

            The presumption of innocence in criminal causes shall
          attend the accused until the jury renders a verdict of
          guilty, and the court shall charge the jury accordingly.
          This presumption of innocence is a proper subject of
          comment in argument.

This Court held that this statute made the presumption of innocence "a
piece of evidence, to be considered by the jury in the defendant's favor in
arriving at their verdict."  State v. Camley, 140 Vt. 483, 488, 438 A.2d 1131, 1133 (1981).  It has not held, however, that the court must instruct
the jury that the presumption is evidence "so long as [the] charge
accurately reflects the law."  State v. Joy, 149 Vt. 607, 617, 549 A.2d 1033, 1039 (1988).  The court's instruction satisfied the law.

     Defendant asked the court to instruct the jury that "he did not have to
[testify], but he chose to.  And he should be considered like any other
witness."  We agree with the late Justice Hayes, who wrote, concurring in
State v. Peters, 147 Vt. 390, 393, 518 A.2d 28, 29 (1986), "[T]he better
practice is not to single the defendant out by a separate jury instruction
dealing solely with his credibility as a witness.  The preferable way is for
the trial court to give a general charge on the credibility of witnesses."
No error appears in the charge.

     The defendant's other contentions on appeal are without merit.

     Affirmed.



                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice