161 W. Va. 330 | W. Va. | 1978
In this original proceeding in habeas corpus, relator, Thomas Kosut, seeks a writ from this Court discharging him from custody. Relator is currently serving a life sentence pursuant to his conviction of first degree murder in the Circuit Court of Hancock County on February 25, 1971. At relator’s trial instructions of the type subsequently condemned in the case of State v. Pendry, W. Va., 227 S.E.2d 210 (1976), were given.
“The proscription against unconstitutionally shifting the burden of proof in criminal trials from the state to the defendant through the use of presumptions is fully retroactive and may be raised by collateral attack against a final conviction.”
The holding of Jones was mandated by Hankerson v. North Carolina , U.S., 53 L. Ed. 2d 306, 97 S.Ct. 2339 (1977), which gave retroactive effect to the earlier opinion of Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S.Ct. 1881 (1975). In Mullaney, the Court declared Maine’s murder statute unconstitutional. Under that statute, a person accused of murder could rebut the statutory presumption that he committed the offense with “malice aforethought” by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the state to the defense and was therefore a violation of due process. Mullaney formed the constitutional underpinning of this Court’s decision in Pendry.
Justices Neely and Caplan concur in the applicability of the retroactivity principle of Jones, but would adhere to their concurring opinion in Jones on the applicability of the doctrine of harmless error.
Writ awarded.
One of the instructions reads:
“The court further instructs you that where a homicide is proved, the presumption is that it is murder in the second degree,
Another instruction reads, in pertinent part:
“... malice may be presumed from the use of a deadly weapon, and a man is presumed to intend that which he does, or which is the immediate or necessary consequence of his act, and if the jury believe from the evidence beyond all reasonable doubt that the defendant, Thomas Kosut, with a deadly weapon in his possession, without any or upon very slight provocation, gave the deceased, Dorthea Kosut, a mortal wound, the defendant is prima facie guilty of wilful, deliberate, and premeditated killing, and, unless the jury believe from the evidence that extenuating circumstances appear, he is guilty of murder in the first degree.”