George Colson v. Hoyt C. Cupp, Superintendent, Oregon State Penitentiary

Colson appeals from an order denying his petition for a writ of habeas corpus challenging his Oregon conviction for attempted burglary of a warehouse. He claims that the following instruction to the jury unconstitutionally shifted the burden of proof:

Assuming, without deciding, that the Oregon law creates a legal presumption, rather than an inference (see McAbee v. United States (9th Cir. 1970) 434 F.2d 361 ), we are nevertheless convinced that the error, if any, in giving the instruction was harmless. The location, design, and protective devices surrounding the warehouse, together with the physical evidence of forced entry, unmistakably proved attempted burglary by someone. The only real issue at trial was whether that someone was Colson. The identification evidence was unusually complete and convincing.

Aside from the use of the language of presumption, the instruction was erroneous because the second sentence is hopelessly circuitous. When the lawfulness of an act depends upon the guilty intent with which the act was done, it is patently wrong to tell a jury that it can infer the requisite intent simply from proof that a defendant did the act. We do not have occasion in this…