248 A.2d 242 | Conn. Super. Ct. | 1968
The defendant, in the first count of the information, is charged with the crime of possession of burglars' tools in the night, in that on or about April 19, 1968, at Weston, he unlawfully had in his possession certain instruments of housebreaking, to wit, a pry bar, pipe wrench and steel punch, in violation of § 53-71 of the General Statutes. Section 53-71 states: "Any person who . . . , in the night, has in his possession, without lawful excuse, the proof of which excuse shall be upon him, any key, picklock, jimmy, jack or bit or other instrument of house-breaking . . . shall be imprisoned not more than five years."
To this first count of the information, the defendant demurs on the following grounds: (1) The privilege against self-incrimination is violated; (2) the information and § 53-71 upon which it is based are founded on an invalid presumption of criminal intent; (3) the burden of proof is improperly placed upon the defendant. The demurrer is well taken.
The fifth amendment to the constitution of the United States states that no person "shall be compelled in any criminal case to be a witness against himself." This fifth amendment privilege against *30
self-incrimination is applicable to the states as well as to the federal government. Malloy v. Hogan,
this conflict between the defendant's full privilege against self-incrimination and the defendant's burden of proof under the statute also places the trial judge in a dilemma in his charge to the jury. If the defendant does not take the stand in his own behalf and elects to remain silent, the trial judge cannot comment to the jury on the defendant's failure to take the stand. To do so would violate the self-incrimination clause of the fifth amendment.Griffin v. California,
No rational inference of criminal intent can be drawn from the mere possession of a pry bar, pipe wrench and steel punch, instruments which reasonably may be employed in crime. Benton v. UnitedStates,
The defendant is presumed innocent until he is proven guilty. The defendant does not have to prove his innocence. The burden is upon the state to prove the defendant guilty of the crime with which he is charged beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the state has borne this burden. Stump v. Bennett,
Section 53-71 creates several offenses. These offenses are divisible, separate, and distinct. The use of the disjunctive "or" indicates clear legislative intent of separability. State v. Sul,
Accordingly, for the foregoing reasons, the defendant's demurrer to the first count of the information is sustained.