State v. Chin

546 P.2d 1095, 24 Or. App. 713, 1976 Ore. App. LEXIS 2438

• Court: Court of Appeals of Oregon
• Decided: March 15, 1976
• Docket: No. 21949, CA 5527
• Status: Published

Opinions

SCHWAB, C. J.

Defendant, convicted upon trial by jury of driving under the influence of liquor, states in his brief on appeal that his "* * * only claim of error relates to a peculiarly horrible explanation of the concept of 'reasonable doubt’ given by the Court while instructing the jury.”¹

The court first instructed the jury that in order to return a verdict of guilty, it was "* * * necessary that the State of Oregon prove, not only by competent legal evidence, but also prove beyond a reasonable doubt, each and every element of this offense * * The court then described the elements of the crime in a manner about which there is no dispute. Having done so, the court then defined "reasonable doubt,” and it is this instruction which defendant describes as "peculiarly horrible.” The court told the jury:

"A reasonable doubt — that means an honest uncertainty as to the guilt of the defendant. A reasonable doubt exists when, after careful and impartial consideration of all of the evidence in this case you do not feel convinced to a moral certainty that Mr. Chin is guilty. A reasonable doubt is such as you people would be willing to act upon in the most important of your own affairs, and that is, in this case, proof beyond a reasonable doubt is such as you people would be willing to act upon in your own affairs. Of course, this is the proof that the state must show.” (Emphasis supplied.)

There is no doubt but that the italicized portion was a misstatement. However, the next portion of the instruction corrects it. Considering the instructions as a whole, we are satisfied that it is unlikely that the jury was misled by the fact that the trial court inadvertently used the term "reasonable doubt” in a context in which "proof beyond a reasonable doubt” was intended, a mistake which, as noted above, the court immediately corrected.

Affirmed.

1 The lengthy exception taken to the instruction which is at issue was couched in language that might well be described as pungent but not as terse or concise. This may have been the reason the court, in the course of denying the exception with what might well be described as asperity, stated:

"Right. Your exception was like my instruction.

«5fC * * * *

"[W]hen I was a young fellow learning how to play the accordion they said that if you make a mistake, you just keep going because if you stop, then everyone knows you have made a mistake * *

We only note that while it usually may be appropriate for accordion players to conceal their mistakes, it usually is appropriate for judges to correct theirs.