State v. O'Connell

• Decision Date: 10 July 1979
• Docket Number: No. 13965,13965
• Parties: STATE of West Virginia v. William Francis O'CONNELL.
• Court: West Virginia Supreme Court

Page 429

256 S.E.2d 429

163 W.Va. 366

STATE of West Virginia v. William Francis O'CONNELL.

No. 13965.

Supreme Court of Appeals of West Virginia.

July 10, 1979.

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 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.

We now consider the instruction's constitutional validity. The instant instruction is not a binding or mandatory instruction requiring the jury to find the defendant had an intent to kill. The word "presume" does not, in common usage, connote a conclusive or mandatory rule of law absolutely imputing the requisite intent to the accused. A mandatory instruction would read, for example, " 'the (rule of) law is that a man shall be taken to intend that which he does, or which is the necessary consequence of his act.' " This type instruction was condemned as being mandatory in syl. pt. 15 of State v. Taylor, 57 W.Va. 228, 50 S.E. 247 (1905) and syl. pt. 17 of State v. Sheppard, 49 W.Va. 582, 39 S.E. 676 (1901).

The critical question remaining, however, is whether the instruction shifts the burden of proof and requires the defendant to disprove a material or essential element of the crime. We believe it does.

The problem with the use of the word "presume" in the instruction in question is that it implicitly establishes a fact necessary for conviction intent to kill which fact remains established unless the defendant can rebut it with proof to the contrary. This is a constitutionally impermissible shifting of burden of proof. In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged. Even though the instruction does not explicitly instruct the jury that it is necessary for the defendant to bear the ultimate burden of persuasion, the word "presume" in its historical and common ¹ usage carried with it that distinct and inescapable meaning. We do not accept the reasoning that this instruction does not use the word "presume" as a legal word of art and that the jury would not have so understood it.

The use of the word "presume" has long been held in this jurisdiction to create a rebuttable presumption of law. In State v. Sheppard, 49 W.Va. 582, 39 S.E. 676 (1901), the Court considered the significance of the word "presume" in an instruction, and discussed the propriety of giving...