Culpepper v. State

• Decision Date: 21 November 1910
• Citation: 111 P. 679,4 Okla.Crim. 103
• Parties: CULPEPPER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

111 P. 679

4 Okla.Crim. 103

CULPEPPER v. STATE.

Court of Criminal Appeals of Oklahoma

November 21, 1910

Syllabus by the Court.

Upon a trial for murder, where the defendant's plea was self-defense, the court gave the jury the following instruction: "You are instructed that the defendant in this case is presumed to be innocent of the crime charged in the indictment, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted by defendant and the plea of self-defense is interposed, as in this case, it then devolves upon defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in doing the act." Held that, under sections 6828 and 6854 of Snyder's Comp. Laws Okl. 1909, the instruction was not erroneous.

The presumption of innocence fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion. It is not evidence and does not partake of the nature of evidence.

The presumption of innocence remains with the defendant only until it is overcome, and does not necessarily remain with him throughout the whole of the trial.

It is error to single out the defendant in a criminal case, and instruct the jury specially upon his credibility as a witness.

A witness' prior contradictory statement cannot be used as substantive testimony tending to show the truth of the facts then stated. It may be shown only for the purpose of affecting the credibility of the witness.

A party cannot impeach his own witness by proof of a prior contradictory statement, where such party has not been misled by the witness, and where the witness has testified to no fact injurious to such party, but has only failed to testify to matters beneficial to him.

Appeal from District Court, Tulsa County; L. M. Poe, Judge.

J. W Culpepper was convicted of manslaughter in the first degree and appeals. Reversed and remanded.

Martin Rice & Lyons, for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

RICHARDSON J.

The first contention in this case is that the verdict was contrary to the evidence. An examination of the evidence discloses that the commission of the homicide by plaintiff in error was proved on the one hand and admitted on the other. His plea was self-defense, and upon this issue the evidence, though conflicting, was amply sufficient to sustain the verdict.

The next assignment of error is predicated upon the action of the court in giving the jury the following instruction: "You are instructed that the defendant in this case is presumed to be innocent of the crime charged in the indictment, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted by defendant and the plea of self-defense is interposed, as in this case, it then devolves upon defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in doing the act." It is contended that this instruction was erroneous because it deprived plaintiff in error of the application of the presumption of innocence to his plea of self-defense. It is also contended that the presumption of innocence is evidence in behalf of the accused, and that it remains with him throughout the whole of the trial under any and all circumstances until the jury have reached a verdict of conviction; and plaintiff in error requested the court to so instruct the jury, and assigns his refusal to do so as error. The two assignments are treated together in plaintiff in error's brief, and we shall so consider them here.

Our statutes provide that "a defendant in a criminal action is presumed to be innocent until the contrary is proved." Section 6828, Snyder's Comp. Laws Okl. 1909. It is also provided that "upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." Section 6854, Snyder's Comp. Laws Okl. 1909. Under the section first quoted, the defendant goes into the trial presumed to be innocent, and this presumption remains with him until the contrary is proved. This fixes the burden of proof in the first instance, and designates the party whose duty it is to produce evidence and effect persuasion--the party upon whom lies at first the risk of nonpersuasion. It is but another way of stating the maxims, "Presumitur pro reo," and "Actore non probante reus absolvitur." The presumption is not evidence of any kind, nor does it partake of the nature of evidence. It is rather a rule in regard to the production of evidence. What is presumed, so long as the presumption remains, need not be proved; and, as to the matter presumed, the burden is on him against whom the presumption exists.

Upon this subject Mr. Wigmore has this to say: "The 'presumption of innocence' is a term which has been the subject of two special fallacies, namely, (1) that it is a genuine addition to the number of presumptions; and (2) that it is per se evidence. As to the first of these fallacies, it is to be noted that the 'presumption of innocence' is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases; i. e., the rule that it is for the prosecution to adduce evidence, and to produce persuasion beyond a reasonable doubt. As to this latter part, the measure of persuasion, the 'presumption' says nothing. As to the former part, the 'presumption' implies what the other rule says, namely, that the accused (like every other person on whom the burden of proof does not lie) may remain inactive and secure until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it. *** As to the second fallacy, it seems to have been mainly propogated by the passage of Prof. Greenleaf declaring that 'this legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.' But it cannot be regarded as 'matter of evidence.' No presumption can be evidence. It is a rule about the duty of producing evidence. This is in itself only a matter of the theory of presumptions, and to that extent may be regarded as a mere question of words--of the way of phrasing a rule upon the substance of which there is no dispute. But, when this erroneous theory is made the ground for ordering new trials because of the mere wording of a judge's instruction to a jury, the erroneous theory is capable of causing serious harm to the administration of justice." 4 Wigmore on Evidence, § 2511.

And Prof. Thayer in his famous lecture on the Presumption of Innocence in Criminal Cases, which is generally recognized as the best treatment of the subject extant, and in which the rule announced in Coffin v. United States, 156 U.S 432, 15 S.Ct. 394, 39 L.Ed. 481, is analyzed and utterly refuted, says: "Now, what does the presumption of innocence mean? Does it mean anything more than a particular application of that general rule of sense and convenience, running through all the law, that men in general are taken, prima facie--i. e., in the absence of evidence to the contrary--to be good, honest, free from blame, presumed to do their duty in every situation in life, so that no one need go forward whether in pleading or proof to show as regards himself or another that the fact is so, but every one shall have it presumed in his favor? If it does, what is its meaning?" And after tracing the history of the presumption, he continues: "It is important to observe this, because, by a loose habit of speech, the presumption is occasionally said to be itself evidence, and juries are told to put it in the scale and weigh it. Greenleaf, in a single phrase, in the first volume of his treatise on Evidence (section 34), a phrase copied occasionally into cases and text-books, has said: 'This legal presumption of innocence is to be regarded by the jury in every case as matter of evidence, to the benefit of which the party is entitled.' This statement is condemned by the editor of the last edition of Greenleaf's book; and in Taylor on Evidence, the great English handbook, which followed Greenleaf's text closely, this passage is omitted, and always has been omitted. In the latter part of Greenleaf's Evidence (volume 3), which deals specifically with criminal cases, it does not appear. It is denied also by Chamberlayne, the careful editor of the works on Evidence of Best and Taylor. What can such a statement as this mean--that the presumption is to be regarded as evidence? Is it meant that, on grounds of natural presumption or inference, innocence is ordinarily found in criminal cases? As to that, if one would see the true operation of natural inference, and natural presumption...