Commonwealth v. De Francesco

• Decision Date: 28 February 1924
• Parties: COMMONWEALTH v. DE FRANCESCO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 9

142 N.E. 749

COMMONWEALTH

v.DE FRANCESCO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1924.

Exceptions from Superior Court, Suffolk County; H. T. Lummus, Judge.

Joseph De Francesco was found guilty of having in his possession and under his control a firearm, as defined in section 121 of chapter 140 of the General Laws, without a permit, under section 131, and brings exceptions. Exceptions overruled.

Criminal law k778(4)-Presumption of innocence is not evidence, and court properly refused to so instruct.

The presumption of innocence is not evidence, and the court properly refused to so instruct, though instructions concerning the burden of proof and concerning the amount of evidence necessary to convict must be given.

M. Caro, Asst. Dist. Atty., of Boston, for the Commonwealth.

Charles D. Driscoll and R. S. Driscoll, both of Boston, for defendant.

RUGG, C. J.

The sole questions on these exceptions are whether a defendant in a criminal case is entitled to instructionsto 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, 80 N. E. 799,11 Ann. Cas. 217, 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 (80 N. E. 802) 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 (52 Am. Dec. 711):

‘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, 119 N. E. 757, L. R. A. 1918E, 680, 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, 139 N. E. 436. 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 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. Instructions concerning the burden of proof and the amount of evidence neces sary 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...