State v. O'Connell, No. 13965
| Court | Supreme Court of West Virginia |
| Writing for the Court | McGRAW |
| Citation | 256 S.E.2d 429,163 W.Va. 366 |
| Parties | STATE of West Virginia v. William Francis O'CONNELL. |
| Docket Number | No. 13965 |
| Decision Date | 10 July 1979 |
Page 429
v.
William Francis O'CONNELL.
Page 430
Syllabus by the Court
In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged.
Charles W. Davis, Richardson, Kemper, Hancock & Davis, Bluefield, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Dennis M. Abrams, Asst. Atty. Gen., Charleston, for defendant in error.
McGRAW, Justice:
The defendant was tried and convicted of first degree murder in the Circuit Court of Mercer County and was sentenced to life imprisonment with mercy.
The principal assignment of error is that the trial court erred in giving, over objection, an instruction impermissibly shifting the burden of proof to the defendant as to a material element of the crime. More specifically, the defendant contends State's Instruction No. 5 violates the principles enunciated in State v. Pendry, W.Va., 227 S.E.2d 210 (1976) and its progeny.
That instruction states:
The Court instructs the jury that a man is presumed to intend that which he does, or which [163 W.Va. 367] is the immediate and necessary consequences of his act.
The defense submits that this instruction tells the jury that if they believe that the defendant killed the homicide victim, it is presumed that he intended to kill the victim. Thus, it is argued that the instruction unconstitutionally relieved the State of its burden of proving beyond a reasonable doubt the intent element of the crime by improperly shifting the burden of proof to the defendant.
Based on post-Pendry decisions, the State contends that if an instruction (1) is not couched in mandatory terms; and (2) does not shift the burden of proof to the defendant for any material element of the crime, it is not constitutionally defective. See, State v. Wright, W.Va., 249 S.E.2d 519 (1978); syl. pt. 3, State v. Starkey, W.Va., 244 S.E.2d 219 (1978). The State also argues that other instructions adequately and properly informed the jury of the State's burden of proof and that an examination of the instructions as a whole reveals the jury was properly instructed as to the law of the case.
The instruction complained of or its equivalent has been given and approved in numerous decisions of this Court since its incorporation in the initial clause of Pendry -type instructions many years ago. See, syl. pt. 11, State v. Cain, 20 W.Va. 679 (1882); State v. Kellison, 56 W.Va. 690, 47 S.E. 166 (1904); State v. Reppert, 132 W.Va. 675, 694-95, 52 S.E.2d 820, 832 (1949) and the decisions cited therein. A very similar instruction was approved as recently as 1974 in State v. Putnam, 157 W.Va. 899, 205 S.E.2d 815 (1974). This is the first time, however, we have been faced with the question of the validity and propriety of this instruction since the United States Supreme Court pronouncement in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and this Court's application of that decision in State v. Pendry, supra.
[163 W.Va. 368] We now consider the instruction's constitutional validity. The instant instruction is not a binding or mandatory instruction requiring the jury...
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State v. Goff, No. 14151
...to give an instruction which supplies by presumption any material element of the crime charged." Syllabus, State v. O'Connell, W.Va., 256 S.E.2d 429 David M. Finnerin, Parkersburg, for plaintiff in error. Chauncey H. Browning, Atty. Gen., Gregory W. Bailey and Homer A. Speaker, Asst. Attys.......
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State v. Miller, No. 23155
...error to give an instruction which supplies by presumption any material element of the crime charged.' Syllabus, State v. O'Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979)." In O'Connell, this Court relied on the constitutional rule established in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. ......
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State v. Young, No. 15785
...given at the appellant's trial was essentially identical with an instruction found to be reversible error in State v. O'Connell, W.Va., 256 S.E.2d 429 (1979). The court stayed execution of the writ for ninety days to permit the State to retry the Prior to retrial, the circuit court denied t......
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State v. Kopa, No. 15708
...alia, that the invalidation of instructions under the concepts contained in Sandstrom v. Montana, supra, and State v. O'Connell, W.Va., 256 S.E.2d 429 (1979), was not to be given full retroactive application. 6 In so holding, the threshold step of the analysis in Bowman was to distinguish t......
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State v. Goff, No. 14151
...to give an instruction which supplies by presumption any material element of the crime charged." Syllabus, State v. O'Connell, W.Va., 256 S.E.2d 429 David M. Finnerin, Parkersburg, for plaintiff in error. Chauncey H. Browning, Atty. Gen., Gregory W. Bailey and Homer A. Speaker, Asst. Attys.......
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State v. Miller, No. 23155
...error to give an instruction which supplies by presumption any material element of the crime charged.' Syllabus, State v. O'Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979)." In O'Connell, this Court relied on the constitutional rule established in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. ......
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State v. Young, No. 15785
...given at the appellant's trial was essentially identical with an instruction found to be reversible error in State v. O'Connell, W.Va., 256 S.E.2d 429 (1979). The court stayed execution of the writ for ninety days to permit the State to retry the Prior to retrial, the circuit court denied t......
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State v. Kopa, No. 15708
...alia, that the invalidation of instructions under the concepts contained in Sandstrom v. Montana, supra, and State v. O'Connell, W.Va., 256 S.E.2d 429 (1979), was not to be given full retroactive application. 6 In so holding, the threshold step of the analysis in Bowman was to distinguish t......