State v. Combs

The defendant was convicted of unlawful assault in the Circuit Court of Cabell County and was sentenced to a term of one to five years in the penitentiary under W.Va. Code 61-2-9.

The principal assignment of error upon which we direct our attention is that the trial court erred in giving an instruction which impermissibly shifted the burden of proof on a material element of the crime to the defendant. More specifically, defendant contends that State’s Instruction No. 5 violates the principles enunciated in State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976).

That instruction states:

The Court…