STATE OF CONNECTICUT
v.
ALVAH DeCOSTER
Supreme Court of Connecticut.
Argued April 6, 1960. Decided July 12, 1960.BALDWIN, C. J., KING, MURPHY, MELLITZ and SHEA, JS.
*503 Nathan G. Sachs, for the appellant (defendant).
George R. Tiernan, prosecuting attorney, for the appellee (state).
SHEA, J.
The defendant was charged, in an information containing two counts, with (a) operating a motor vehicle while under the influence of liquor and (b) intoxication. After the state produced evidence and rested its case, the defendant also rested, claiming that the evidence did not establish his guilt beyond a reasonable doubt. He was found guilty on both counts and has appealed.
*504 On January 6, 1959, about 12:30 a.m., a police officer found the defendant slumped over the steering wheel of his car, which was stopped on Wright Avenue in New Haven. The defendant was intoxicated. He was the owner of the car and had a license to operate a motor vehicle. The key was in the switch but the ignition was turned off. There was damage to the car on the right side and both tires on that side were flat. Wright Avenue is the first street intersecting Amity Road west of the intersection of Amity Road and Whalley Avenue, where there is a rotary traffic circle with signs directing traffic to "Go Right." Four of these signs had been knocked down.
Section 14-227 of the General Statutes provides: "No person shall operate a motor vehicle while under the influence of intoxicating liquor...." The state must prove each of the two essential elements of the crime charged beyond a reasonable doubt. State v. Newman, 127 Conn. 398, 400, 17 A.2d 774. The court was entitled to draw all fair and reasonable inferences from the facts established by the evidence, but the conclusions based on them must not be the result of speculation and conjecture. Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750; Bruce v. McElhannon, 141 Conn. 44, 48, 103 A.2d 335; State v. Murphy, 124 Conn. 554, 562, 1 A.2d 274. At the time of his arrest, the defendant was not operating a motor vehicle within the meaning of the law. State v. Swift, 125 Conn. 399, 403, 6 A.2d 359. No one had seen him operating the car, and there was no evidence to show how long it had been standing in the place where it was found. Even though the court might infer that the defendant's car had struck the signs at the traffic circle, there was no evidence whatever to show when or how the *505 collision occurred. Time was an element of importance. The state assumed the burden of proving not only that the defendant was operating the car but also that he was under the influence of liquor at the time. This element was not satisfied by showing that he was intoxicated when he was found by the officer. State v. Liechti, 209 Iowa 1119, 1123, 229 N.W. 743. It is the law of this state that a man shall not be convicted upon mere suspicion. The state must prove guilt beyond a reasonable doubt, that is, by such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof wholly consistent with the defendant's guilt and inconsistent with any other rational conclusion. State v. McDonough, 129 Conn. 483, 485, 29 A.2d 582. Our law is settled that the proof of guilt must exclude, not every possible, but every reasonable supposition of the innocence of the accused. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761. In the present case, the evidence does not exclude every reasonable supposition of the innocence of the defendant. In the absence of any evidence as to the time when the defendant last operated his car, the conclusion of the trial court that he violated the statute was unwarranted and invaded the realm of speculation and conjecture.
The defendant offered no evidence and did not testify in his own behalf. The state contends that even if its evidence, standing alone, did not warrant a finding of guilt, that evidence, supplemented by the inference which the court could draw from the defendant's failure to testify, did justify a conclusion of guilt. If the state had made out a prima facie case against the defendant, the trier was entitled to take into consideration the fact that he did not testify. State v. DeGennaro, 147 Conn. 296, 301, *506 160 A.2d 480; State v. Pundy, 147 Conn. 7, 12, 156 A.2d 193; State v. Nelson, 139 Conn. 124, 127, 90 A.2d 157. A prima facie case is made out when the evidence indicates to a reasonable person such a strong probability of guilt that a denial or an explanation by the defendant is reasonably called for. State v. Rich, 129 Conn. 537, 540, 29 A.2d 771. Unless the state makes out a prima facie case of guilt, no unfavorable inference may be drawn from the failure of the accused to testify. State v. McDonough, supra, 488.
The defendant has not pursued his appeal on the second count.
There is no error as to the second count; as to the first count, there is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty.
In this opinion KING, MURPHY and MELLITZ, Js., concurred; BALDWIN, C. J., dissented.