(concurring and dissenting). I agree that there was prejudicial error in the refusal to separate the charges, but would also find error in the trial court’s charge to the jury.
The accused in this case testified on his own behalf. Thereafter the court charged the jury as follows: “Now, an accused person is not obliged to tafee the witness stand in his own behalf. On the other hand, he has a perfect right to do so, as this defendant has done. In weighing the testimony this accused has given to you, you should apply the same principles by which the testimony of other witnesses is tested. You may consider the importance to bim of the outcome of the trial and his motive on that *579account for not telling the truth. An accused person, having taken the witness stand, stands before you just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, his interest in the verdict you are to render.”
The defendant took exception to that charge, claiming that it offended his rights to due process by unduly singling out his testimony; by denigrating the weight to be accorded his testimony compared to that of other witnesses; and by depriving him of the presumption of innocence that is accorded to every criminal defendant. I am persuaded by the circumstances of the present case that that argument has merit and withdraw my earlier support for such a charge. See State v. Moynahan, 164 Conn. 560, 574, 325 A.2d 199, cert, denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219; State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87, cert, denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186.
A defendant is presumed innocent until proven guilty; Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481; Deutch v. United States, 367 U.S. 456, 471, 81 S. Ct. 1587, 6 L. Ed, 2d 963; and if he does not testify, no comment can be made upon his failure to do so. Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106. The charge in this case placed a premium on the defendant’s decision to testify by relegating his assertion of innocence to a less credible category of testimony than that of the complaining witnesses. By creating such a circumstance, the charge under consideration substantially undermines the presumption that the accused is innocent by permitting the jury to *580attribute a motive to the defendant that can only attach if he is indeed guilty as charged. “[T]he accused’s right to a fair trial in a fair tribunal is the very foundation of due process. ‘. . . Every procedure which would offer a possible temptation to the average man ... to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.’ Tumey v. Ohio, 278 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749; Estes v. Texas, 381 U.S. 532, 543, 85 S. Ct. 1628, 14 L. Ed. 2d 543.” Aillon v. State, 168 Conn. 541, 546, 363 A.2d 49. To single out the defendant for exercising his right to testify is equally as repugnant as commenting on the exercise of his right to remain silent.
The better rule is to limit the charge to a general statement of the elements by which all witnesses’ testimony should be weighed and not to single out the defendant’s testimony as worth less than that of any other witness. See, e.g., United States v. Brown, 453 F.2d 101, 107 (8th Cir.), cert, denied, 405 U.S. 978, 92 S. Ct. 1205, 31 L. Ed. 2d 253; Garvin v. State, 255 Ind. 215, 217-22, 263 N.E.2d 371; State v. Bester, 167 N.W.2d 705, 706-10 (Iowa); Hall v. State, 250 Miss. 253, 265-67, 165 So. 2d 345; State v. Finkelstein, 269 Mo. 612, 618-22, 191 S.W. 1002; Graves v. State, 82 Nev. 137, 138-42, 413 P.2d 503; Stewart v. State, 484 S.W.2d 77, 79 (Tenn. Crim. App.); and cases cited at 85 A.L.R. 577. See also Bryson v. State, 291 So. 2d 693 (Miss.); State v. Bruyere, 110 R.I. 426, 293 A.2d 311.
I would therefore find error, set aside the judgment on all four counts, and order new trials.