CONCURRING OPINION OP
CIRCUIT JUDGE M. DOII concur on the basis that the statute in question, HRS § 746-6, violates the due process clause of both state and federal constitutions in that it is too broad and vague.
The statute is obviously intended to suppress gambling by making mere presence in a described set of circumstances a crime on the reasoning that the circumstances described lead to an inescapable or at least highly probable conclusion that anyone found in them must have been engaging in or abetting gambling.
Under the statute, a person is guilty if he is found present “in such room, house or place barred or barricaded, or otherwise built or protected in a manner to make it difficult of access or ingress to police officers where are exhibited or exposed to view any cards, dice, dominoes *613* * HRS § 746-6. Tbe “room, bouse or place” i*eferred to includes, by pari materia construction, a “room, bouse, or place where-tbe doors are locked and tbe windows closed and screened * * as described in HRS § 746-5. Territory v. Wong & Hong, et als., 40 Haw. 423 (1954).
Cards, dice and dominoes are common items in frequent use in innocent pastimes as well as in gambling. Locked bornes with windows closed and screened with sucb items innocently in view are commonplace. It is obvious that a literal application of the statute would trap more of tbe innocent than the gamblers, which indicates its broad reach and demonstrates tbe lack of any rational connection between tbe act condemned (presence in tbe described circumstances) and tbe activity legitimately sought to be proscribed (gambling).
That suppression of gambling is within legislative power may be conceded. However, the means used to achieve sucb objective must comport with constitutional dictates. Where a statute creates a presumption which aids in convicting by presuming a necessary fact from the proof of another fact, the presumption does not comply with constitutional due process if the fact presumed is not rationally connected to the fact proven. Turner v. United States, 396 U.S. 398 (1970). It can be no different where an overly broad statute makes an otherwise innocent act a crime on the reasoning that such act may be evidence of other criminal activity and there is absent any rational connection between the two. And any attempt at judicial construction which would restrict the statute’s application so that a rational connection between the two would result, even if possible, is not only impermissible but would make the statute vague. State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968).