State v. Bolin

OPINION

FONES, Justice.

The issue in this case is whether a jury instruction which states that “the use of a deadly weapon ... raises a presumption of malice, unless rebutted by other facts and circumstances to the contrary” unconstitutionally shifts the burden of persuasion on the element of malice from the State to the defendant.

Defendant was convicted in the trial court of assault with intent to commit murder in the first degree after the above instruction was charged to the jury. The Court of Criminal Appeals found the charge to be constitutionally defective, reduced the offense to…