State v. O'CONNELL

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 im-permissibly 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…