People v. Morris

SALSMAN, J.

—Appellant was charged with forcible rape (Pen. Code, § 261, subd. 3); statutory rape (Pen. Code, § 261, subd. 1), and lewd and lascivious conduct (Pen. Code, § 288). The latter charge was dismissed before trial. A jury found him guilty of contributing to the delinquency of a minor, a lesser offense included within the charge of statutory rape. He appeals.

We need not detail the evidence. Appellant’s contentions relate purely to questions of law. His contention that the court committed prejudicial error in failing to instruct the jury on the presumption of innocence is well taken, and compels reversal of the judgment.

In instructing the jury, the trial judge did not use the standard jury instructions found in CALJIC. Rather, he formulated his own instructions, and it is apparent from their text, considered as a whole, that he sought to couch them in language more meaningful and familiar to the layman than that used in the form book. The purpose is commendable, but as prior cases show, the peril is great. (See

People

v.

Castro,

68 Cal.App.2d 491, 497 [157 P.2d 25], and cases cited.)

Appellant requested the court to read CALJIC 21 to the jury. This instruction is an exact quotation of Penal Code, section 1096. It begins by informing the jury of the presumption of innocence that stands in favor of every defendant accused of a crime and states that the effect of the presumption is to require the state to prove guilt beyond reasonable doubt. It then defines reasonable doubt in words long accepted as a proper definition of that term.

(People

v.

Miller,

171 Cal. 649, 651-652 [154 P. 468];

Commonwealth

v.

Webster,

59 Mass. (5 Cush.) 295, 320 [52 Am.Dec. 711].) But the trial judge rejected appellant’s request and used his own instruction, elaborating upon the definition of reasonable doubt in terms he believed more comprehensible to the layman than the terms of the statute. Unfortunately, however, the judge at no time told the jury that appellant was presumed innocent until the contrary was proved, or that the burden of proof beyond a reasonable doubt rested upon the People. This, appellant contends, deprived him of a fundamental right. We agree.