A trial judge doesn't always have to instruct the jury to presume a defendant to be innocent, the Supreme Court ruled 6 to 3 yesterday.

A failure to give a requested instruction on the presumption of innocence "does not in and of itself violate the Constitution," the court said in an unsigned opinion.

Under a 1978 decision, the opinion said, "such a failure must be evaluated in the light of the totality of the circumstances - including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors - to determine whether the defendant received a constitutionally fair trial."

The ruling drew a sharp dissent, underscored by Justice Potter Stewart when he read it aloud from the bench.

"No principle is more firmly established in our system of justice than the presumption of innocence that is accorded to the defendant in every criminal trial," Stewart wrote in an opinion also signed by Justices William J. Brennan Jr. and Thurgood Marshall.

"While an instruction on the presumption of innocence in one sense only serves to remind the jury that the prosecutor has the burden of proof beyond a reasonable doubt, it also has a separate and distinct function," Stewart said.

That function is to assure the defendant, "regardless of the totality of the circumstances," that the jury will determine whether the defendant is guilty "only on the evidence properly introduced against him at trial," Stewart said.

Because of that, he said, he would hold that the constitutional guarantee against deprivation of liberty without due process of law requires an instruction on the presumption of innocence "in every case where a timely request has been made."

The court acted in a case in which Kentucky's highest tribunal-by a divided vote-reversed the conviction of Harold Whorton on 14 counts of armed robbery and related charges.

The reversal was based on the Kentucky Supreme Court's understanding that the 1978 decision constitutionally required a jury instruction on the presumption of innocence, which was denied to Whorton, in all criminal trials. But, yesterday's opinion emphasized, the 1978 decision had rested, as the justices said at the time, "on the facts of this case."

The court took other actions.

CRUEL, UNUSUAL PUNISHMENT

For six years, William J. Rummel, 36, of San Antonio, has been in a Texas prison serving a life sentence because he was convicted of three felonies:

Presenting a credit card in 1964 with intent to defraud someone of about $80; passing a bad check in 1969 for $28.36, and in 1973, stealing $120.75 by falsely promising to fix an air conditioner.

The 1973 conviction resulted in the life sentence because it was automatic under the Taxas habitual offender statute. Texas is the only state that still enforces such a law for non-violent crimes, although 18 other states once did so.

Last December, by 8 to 6, the 5th U.S. Circuit Court of Appeals rejected Rummel's contention that the Texas law was cruel and unusual punishment in violation of the Eighth Amendment.

He didn't shown that the law lacks a rotional basis, the majority held. It pointed out that with good behavior, Rummel could be considered for parole in 1985. In addition, the majority said, the nature of the felonies is irrelevent.

Yesterday, the Supreme Court agreed to review Rummel's case.

RULE 11

Rule 11 of the Rederal Rules of Criminal Procedure provided in 1974 that a person making a guilty plea must be told of the consequences. By mistake, a judge in Detroit, accepting such a plea from narcotics defendant Charles Timmreck, told him he faced up to 15 years, but failed to tell him he also would be subject to at least three years on mandatory parole.

The judge then gave Timmreck 10 years plus parole of five years. Two years later, Timmreck, alleging violation of Rule 11, sought to have the sentence nullified. The 6th U.S. Circuit Court of Appeals agreed with him but was reversed, 9 to 0 yesterday.