Remillard v. State , 10 Okla. Crim. 438 ( 1914 )

A petition for rehearing has been filed in which it is averred:

"That this court in rendering its decision in this cause, overlooked the decisive question upon which this case was appealed, and the important question submitted in the motion for a new trial, and in the petition in error, to wit, that the court materially and manifestly erred in giving that part of instruction number four, which reads as follows: ``But if you find from the evidence that he did not sell, or assist in the sale, or give or otherwise furnish, or assist in giving or otherwise furnishing the said liquor to the said Glen Hall, then you should acquit him.'" — Citing the case of Weber v. State,2 Okla. Cr. 329, 101 P. 535.

It is our opinion that this paragraph of said instruction is clearly erroneous, and in giving it the court misdirected the jury, to the prejudice of the substantial rights of the defendant. This paragraph, in effect, deprives the defendant of the benefit of the presumption of innocence. It required the jury to believe from the evidence that he was innocent before they could find him not guilty, and imposed upon him the burden of proving his innocence.

A defendant is presumed to be innocent until the contrary is proved and the jury must presume his innocence until his guilt has been established beyond a reasonable doubt, and in case of a reasonable doubt it was their duty to acquit him, although they might not find from the evidence that he did not sell or assist in the sale or otherwise furnish the said liquor to Glen Hall as charged in the information.

For the giving of said instruction the judgment is reversed and a new trial awarded.

ARMSTRONG, P.J., and FURMAN, J., concur.