I realize quite well that in this State the rule has been handed down without qualification from judge to judge, year after year, to the general effect that no judgment will be reversed in this Court because of the failure of a trial judge to give a particular charge to the jury, unless the substance of the charge omitted was specifically requested to be given, was refused, and proper exception taken to such refusal at thetime thereof.
But this rule, like many other rules that we have oft-times "parroted" without qualification, is subject to the limitation of that broader and more general rule of appellate practice to the effect that fundamental error on the face of the record in a case brought to this Court on appeal or writ of error, can and will be noticed, and the judgment or decree reversed therefor (although no exception was taken to it in the lower court) where such fundamental error is subsequently called to the appellate court's attention and clearly demonstrates that the trial court departed from the essential requirements of the law in the particulars complained of, whether its action was originally complained of as error in the court below or not. Demeter Land Co. v. Florida Public Service Corp. 99 Fla. 954, 128 Sou. Rep. 402; Hoodless v. Jernigan, 46 Fla. 213, 35 Sou. Rep. 566; Parker v. Dekle, 46 Fla. 452, 35 Sou. Rep. 4; East Coast Stores v. Cuthbert, 101 Fla. 25, 133 Sou. Rep. 863; Bynum v. State, 76 Fla. 618, 80 Sou. Rep. 572; White v. Crandall,105 Fla. 70, 137 Sou. Rep. 272; Cunn v. State, 78 Fla. 599, 83 Sou. Rep. 511; O'Steen v. State, 92 Fla. 1062 (text 1066, 1075), 111 Sou. Rep. 725; Gober v. Braddock, *Page 584 100 Fla. 1406, 131 Sou. Rep. 407; McNally v. State, ex rel Bond Realization Corp., 112 Fla. 434, 150 Sou. Rep. 751; City of Clearwater v. State, ex rel. United Mutual Life Ins. Co.,108 Fla. 623, 147 Sou. Rep. 459.
I think the failure of a trial judge to instruct a trial jury that the defendant in a criminal prosecution is presumed to be innocent and that such presumption continues and abides with him throughout every stage of the trial until overcome by competent evidence sufficient to establish his guilt to the exclusion of every reasonable doubt, is a fundamental error that amounts to a departure from the essential requirements of a fair and impartial trial such as is required by the State and Federal Constitutions, and renders the resultant judgment subject to reversal therefor, even though the point is not raised until the case is presented in an appellate court.
It is undoubtedly true that persons being tried on accusations of crime are entitled to learned counsel to see to it that they obtain a fair and impartial jury trial. But I do not understand it to be the law that fundamental requirements of a legal trial can be disregarded by a trial judge merely because he perceives that the accused on trial has no hired counsel present to lay the technical predicate for reversing his judgment by means of a purely formal insistence on a constitutionally fair and impartial trial conducted accordingto the essential requirements of the law. An accused without any learned counsel present to advise him would not be cognizant of the technical necessity of requesting specific charges on fundamental considerations that no trial judge underany circumstances, in any criminal trial in any of the courts of America, is entitled to omit by design, or to ignore through inattention, if the essential requirements of law that must govern the accord to the accused of his constitutional right to a trial by jury are to *Page 585 mean anything more than a discardable formalism in American jurisprudence.
It is not enough to say that because the court has charged the jury that the defendant must be proved guilty beyond a reasonable doubt, that the failure of the judge to charge on the presumption of his innocence becomes harmless error. A jury starting from a presumption of guilt from the fact that the defendant's indictment, could readily reach the conclusion that the defendant had been proved guilty beyond a reasonable doubt because of his failure to advance affirmative proof of his innocence, whereas starting from a presumption of innocence would lead to no such result.
The presumption of innocence of the defendant on trial is the starting point from which every trial jury must begin their consideration of whether or not the defendant has been shown by the prosecution to be guilty beyond a reasonable doubt.
A charge on the subject of reasonable doubt alone is therefore incomplete and misleading unless the jury is further instructed in connection with it, that any reasonable doubt on their part must take into consideration an original presumption of the defendant's innocence as opposed to any conclusion of guilt to be drawn from the State's evidence. Otherwise the jury would be left with the privilege of concluding beyond a reasonable doubt that the defendant must be guilty because a grand jury has indicted him on the basis of testimony adduced before it, or because, the defendant has failed to rebut evidence tending to show guilt by affirmative evidence of his innocence offered at his trial. Would the last named method of procedure on the jury's part be an adherence to the essential requirements of constitutional jury trial?
I think it is the inescapable duty of a trial judge in a *Page 586 criminal case to instruct the jury as to the essential and indispensable rules of law which must govern the jury's disposition of the cause, whether he is requested to do so or not, and that a failure to do so constitutes a denial of a fair trial and is therefore fundamental error. Compare: Young v. State, 74 Neb. 346, 104 N.W. Rep. 867, 2 L. R. A. N. S.) 66.
Our own case of MacDonald v. State, 55 Fla. 134, Sou. Rep. 176, is relied on as being to the contrary, but that decision simply holds (as the fourth headnote clearly demonstrates) that the mere failure to charge the jury on the law "applicable to the evidence" in "one or more of its aspects," or as applicable "to some portion of the evidence," will not in general be error in the absence of a proper request and exception to a refusal of such a charge. The law of that case is stated in the headnote referred to, in the light of such headnote what is stated in the body of the opinion must be interposed.
Certainly it cannot be argued with any degree of force or conviction that a failure to charge the jury that the accused in a criminal case starts out with a presumption of innocence in his favor, is a mere failure to charge the jury upon the law applicable to the evidence "in one or more of its aspects," or is a mere failure to charge on the law applicable to some portion of the evidence.
On the contrary, it is a complete failure to charge upon an essential requirement of the law pertaining to the trial itself that must enter into and constitute an indispensable element of every constitutionally guaranteed trial by jury in every criminal case. If this were not so, could not the Legislature in effect thwart the benefit of a trial by jury by simply enacting a statute to the effect that no accused person being tried for crime, or for certain classes of crime, *Page 587 shall ever be presumed to be innocent, and forbidding any trial judge to so charge any trial jury, thereby leaving it to each separate jury to adopt and follow its own vicarious method of determining the guilt of the accused, without reference to giving him the protection of his presumption of innocence as a starting point from which to have the trial jury proceed with its consideration and weighing of the evidence against him?
My view on rehearing is that inasmuch as we overlooked a fundamental error in the record when we heretofore affirmed the conviction of plaintiff in error in this case, that we should now correct that oversight by reversing the judgment for a new trial because of the failure of the trial judge to charge the jury on the presumption of innocence of the accused. This Court has reversed cases in the past for less objectionable omissions in instructions to jury as in criminal cases. See Cruce v. State, 84 Fla. 191, 93 So. 2d 134.
I make no contention to the effect that the presumption of innocence is in the nature of evidence, and on this point I am in perfect agreement with the view holding that the presumption of innocence in favor of an accused is not evidence in favor of the accused.
On the contrary, it is for the very reason that the presumption of innocence is not evidence in favor of the accused, but is a rule of law controlling the jury's consideration and weighing of the evidence and so amounts to an essential requirement of the law pertaining to and constituting a part of the right to a trial as much so as does the rule fixing the burden of proof beyond a reasonable doubt as the criterion for what the state must prove. Therefore I do not think it can ever be dispensed with in a criminal trial, whether by inadvertence or by design, without effectually destroying an essential requirement of law that enters into *Page 588 and becomes under the constitution of this state, a part of the constitutional right to a trial by jury itself.
If what I say is not the law on this subject, then the Legislature may during some period of public unrest, and without violating the fundamentals of right of trial by jury, provide by statute that no accused person shall be presumed to be innocent, but that in every case he shall be presumed to be guilty. It could also by the same process of reasoning provide by statute that an accused should prove his innocence beyond a reasonable doubt and that this would be no violation of the constitutional right of trial by jury so long as an actual jury was empannelled and present in the jury box. I think the right of trial by jury comprehends the right to have a jury consider and weigh the evidence according to the traditional essential requirements of law pertaining to jury trials. So believing I express the foregoing views on the subject.