Galauska v. State , 532 P.2d 1017 ( 1975 )

FITZGERALD, Justice.

Walter Mack Galauska has petitioned for rehearing of this court’s affirmance of his conviction for manslaughter.¹ Galauska v. State, 527 P.2d 459 (Alaska 1974). He now claims that the court misapplied the law on accomplices and failed to deal with the issue raised in his brief concerning the jury instruction that witnesses are presumed to speak the truth. Finding no misapplication of the law, the petition is denied as to' the accomplice issue. We grant a rehearing on the witness instruction and modify our opinion.

Petitioner argues that the trial court committed prejudicial error when he instructed the jury that “a witness is presumed to speak the truth.” He urges this court to adopt the position of Justice Brennan dissenting in Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), and hold that the instruction raises the possibility of conviction on a standard less than that of a reasonable doubt and thereby violates the due process clause of Article I, Section 7 of the Alaska constitution.²

We do not believe that any harms arising from the contested jury instruction are of a constitutional dimension. In this regard we are in agreement with the majority in Cupp.

We do, however, condemn the use of a jury instruction which states that witnesses are presumed to speak the truth. Such an instruction is subject to numerous infirmities. It interferes with the province of the jury to determine credibility of witnesses.³ It seems to conflict with the presumption of innocence.⁴ The instruction serves to raise doubt in the juror’s mind as to his role and adds a confusing factor to jury deliberations.⁵

Use of the condemned jury instruction was, however, harmless error in the circumstances of Galauska’s trial. Our review of the trial record leads us to conclude that the jury fairly assessed the facts and decided issues of credibility. The improper instruction was, moreover, accompanied by correct and appropriate instructions on burdens of proof and credibility which properly defined the jury’s role. We are able to say with fair assurance that the judgment was not substantially swayed by the error.⁶

CONNOR, J., not participating.

1 . The facts of the crime are set out in detail in the original opinion and will not be repeated here.

2 . In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) the Supreme Court held that the due process clause of the XIV amendment protects an accused against conviction except on proof beyond a reasonable doubt.

3 . See, e. g., United States v. Stroble, 431 E.2d 1273, 1278 (6th Cir. 1970).

4 . See, e. g., United States v. Johnson, 371 F.2d 800, 804 (3d Cir. 1967).

5 . See, e. g., Stone v. United States, 126 U.S. App.D.C. 369, 379 F.2d 146, 147 (1967).

6 . Love v. State, 457 P.2d 622, 631 (Alaska 1969), quoting Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).