No. 14463 

IN THE SUP- COURT OF' THE STATE OF MINTANA 

THE STATE OF MXCANA, 

Plaintiff and Respondent, 

-VSJOSEPH ST- WILL=, 

Defendant and Appellant. 

Appeal fm: District Court of the Eighth Judicial District, 

Honorable Joel G. mth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniel Donovan, Public Defender argued, Great Falls, Mntana 

Larry Anderson, Etblic Defender argued, Great Falls, Mntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Mntana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Carroll Blend argued, Deputy County Attorney, Great Falls, mntana 

Sutmitted: June 4, 1979 

Decided: NO\' 5 lm - 
Honorable James B. Wheelis, District Judge, sitting in place of 

Mr. Justice John C. Sheehy, who deems himself disqualified. 

Joseph Stanley Williams, the appellant, was charged 

with felony theft and found guilty of having purposely or knowingly exerted unauthorized control over a pickup belonging to 

Bison Motors in Great Falls. 

Before the taking of evidence at the trial, the defendant 

requested that the District Court preliminarily instruct the 

jury with respect to the presumption of innocence. The court 

refused the request and advised defendant that the instruction 

would be given in final instructions. At the settlement of final 

instructions, the defendant renewed his request, but it was denied. 

The court refused the instruction, which included a statement 

of the law on both the presumption of innocence and the State's 

burden of proof ruling that it duplicated another instruction. 

The instruction proposed by the State and adopted by the trial 

court instructed the jury that the State must prove the defendant's 

guilt beyond a reasonable doubt. It did not instruct them to presume the defendant innocent. 

The first issue presented upon appeal is whether the trial 

court's refusal to give the defendant's requested instruction on 

the presumption of innocence results in a violation of his right 

to a fair trial as guaranteed by the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution and Article 

11, Section 17 of the 1972 Montana Constitution. 

On this issue we must reverse. We think even though the 

jury was properly instructed as to the burden of proof beyond a 

reasonable doubt, when he so requests, the defendant is still entitled to an instruction as to the presumption of innocence which 

exists in his favor. As Justice White noted in Coffin v. United 

States (1895), 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 

491: 

"The principle that there is a presumption of 

innocence in favor of the accused is the undoubted 

law, axiomatic and elementary, and its enforcement 

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lies at the foundation of the administration of 

our criminal law." 

Though the trial court thought it unnecessary to instruct 

the jury on the presumption of innocence as well as on the State's 

burden of proof, we think it is a constitutional safeguard to use 

both. 

Appellant relies heavily on Taylor v. Kentucky (1978), 436 

U.S. 478, 98 S.Ct. 1930, 56 L Ed 2d 468, in which the United 

States Supreme Court reversed a criminal conviction resulting 

from a trial in which the judge refused to give a requested jury 

instruction on the presumption of innocence. The State of Kentucky argued that the burden of proof beyond a reasonable doubt 

instruction effectively duplicated the presumption of innocence 

instruction, but the Supreme Court in Taylor said: 

"While the legal scholar may understand that the 

presumption of innocence and the prosecution's 

burden of proof are logically similar, the ordinary 

citizen may well draw significant additional guidance from an instruction on the presumption of 

innocence. Wigmore described this effect as follows: 

II I . . . In a criminal case the term [presumption of 

innocence] does convey a special and perhaps useful 

hint over and above the other form of the rule about 

the burden of proof, in that it cautions the jury 

to put away from their minds all the suspicion that 

arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the 

legal evidence adduced. 

"'In other words, the rule about burden of proof requires the prosecution by evidence to convince the 

jury of the accused's guilt; while the presumption 

of innocence, too, requires this, but conveys for the 

jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but 

the evidence, i-e., no surmises based on the present 

situation of the accused. This caution is indeed 

particularly needed in criminal cases.' Wigmore 407. 

"This court has declared that one accused of a crime 

is entitled to have his guilt or innocence determined 

solely on the basis of the evidence introduced at trial, 

and not on grounds of official suspicion, indictment, 

continued custody, or other circumstances not adduced 

as proof at trial. . . it long has been recognized 

that an instruction on the presumption [of innocence] 

is one way of impressing upon the jury the importance 

of that right." Taylor v. Kentucky, 436 U.S. at 484- 

485, 98 S.Ct. at , 56 L Ed 2d at 474-475. 
The Taylor decision does not, however, announce an absolute rule that denial of a requested instruction on the presumption of innocence results in reversible error. The holding 

was explicitly limited to its facts, and later in Kentucky v. 

Whorton (1979) , U.S. -1 - S.Ct. , 60 L Ed 2d 640, 

the court held that failure to give a requested instruction on 

the presumption 0.f innocence does not in and of itself violate 

the Constitution. The court said: 

"Under Taylor, such a failure must be evaluated in 

light of the totality of the circumstances--including all the instructions to the jury, the arguments 

of counsel, whether the weight of the evidence was 

overwhelming, and other relevant factors--to determine whether the defendant received a constitutionally 

fair trial." Whorton, 60 L Ed 2d at 643. 

Hence, the United States Supreme Court has decided that the 

totality of the circumstances shall dictate whether the issuance 

of a presumption of innocence instruction is necessary. Historically, though, Montana has set higher standards on this issue, 

as we are allowed to do, and we decline this opportunity to lower 

those standards. 

In an 1899 case, State v. Harrison (1899), 23 Mont. 79, 

57 P. 647, this Court flatly ruled without examination of the 

facts that failure to give a requested instruction on the presumption of innocence was reversible error. 

In State v. Howell (1901), 26 Mont. 3, 5, 66 P. 291, 292, 

this Court said "The defendant in a criminal case is always 

entitled to have the jury take into consideration the presumption of innocence which the law throws about him." 

This Court reiterated the Harrison ruling in 1951 when 

it stated: 

"The presumption of innocence surrounds the Defendant 

at every step in the trial and to its benefits he 

is entitled in the determination of every fact by the 

jury . 

"It has the weight and effect of evidence in the 
Defendant's behalf." State v. Gilbert (1951), 125 

Mont. 104, 109, 232 P.2d 338, 341. (Emphasis 

supplied.) 

We hold steadfast to this per se rule that an instruction 

on the presumption of innocence is required in every case when 

a timely request has been made and think it preferable to the 

totality of the circumstances test articulated in Kentucky v. 

Whorton, supra. This test allows a defendant's right to an instruction on the presumption of innocence to ultimately stand 

or fall on the weight of the evidence. In determining whether 

to give the instruction, the trial court would, of necessity, be 

required to pass judgment on both the quantity and quality of the 

evidence presented. We think that this evaluation by the trial 

court would be a usurping of the jury's role as the judge of fact 

and a partial denial of the defendant's right to a trial by jury 

as guaranteed by the Sixth and Fourteenth Amendments of the United 

States Constitution and Article 11, Section 26, 1972 Montana Constitution. 

It having been stipulated by counsel at oral argument that 

other grounds raised on appeal are not ripe for decision, we do 

not reach them, and reverse and remand for a new trial consistent 

with the conclusions in this opinion. 

ames B. Wheelis, District 

sitting in place of Mr. Jusohn C. Sheehy. 

We concur: I 

Chief Justice 

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A/ 

Justices