Belock v. State Mut. Fire Ins. Co. , 108 Vt. 252 ( 1936 )

I concur in the result of the foregoing opinion, but in so doing I do not wish to be understood as subscribing to the soundness of the proposition that the presumption of innocence, or any presumption for that matter, is evidence and is to be weighed and considered as such by the jury. Although this doctrine is said in In re Cowdry's Will, 77 Vt. 359, 364, 60 A. 141, 3 Ann. Cas. 70, to be "embedded in our law," I believe it to be based upon a fallacy. As the opinion points out, the weight of authority is against it, and the United States Supreme Court, upon whose decision in Coffin v. United States, 156 U.S. 432, 452ff., 39 L. ed. 481, 15 Sup. Ct. 394, reliance was placed in the Cowdry will case, has changed its position in Agnew v. UnitedStates, 165 U.S. 36, 51, 52, 41 L. ed. 624, 630, 17 Sup. Ct. 235, and Holt v. United States, 218 U.S. 245, 253, 54 L. ed. 1021, 1030, 31 Sup. Ct. 2, 20 Ann. Cas. 1138. Ample support for my view is to be found in Thayer, Preliminary Treatise on Evidence, ch. VIII, and Appendix B; and Wigmore, Evidence, vol. 4, para. 2511.

Since, however, the point is not directly involved in the decision of the instant case, it is unnecessary to labor it at this time.