defendant relies upon defense in West Virginia

1997Syllabus point two of State v. Nuckolls, 166 W.Va. 259 , 273 S.E.2d 87 (1980), provides that a defendant relying upon the defense of insanity is entitled to such instruction: In any case where the defendant relies upon the defense of insanity, the defendant is entitled to any instruction which advises the jury about the further disposition of the defendant in the event of a finding of not guilty by reason of insanity which correctly states the law; however, when the court gives an instruction on this subject which correctly states the law and to which the defendant does not object, the defenda

1997Syllabus point two of State v. Nuckolls, 166 W.Va. 259 , 273 S.E.2d 87 (1980), provides that a defendant relying upon the defense of insanity is entitled to such instruction: In any case where the defendant relies upon the defense of insanity, the defendant is entitled to any instruction which advises the jury about the further disposition of the defendant in the event of a finding of not guilty by reason of insanity which correctly states the law; however, when the court gives an instruction on this subject which correctly states the law and to which the defendant does not object, the defenda

1983Defendant’s Instruction No. 16: “The Court instructs the jury that while the burden of proving an alibi is on the defendant, on account of its affirmative nature, this does not dispense with the necessity of the state proving the actual presence of the defendant at the place where, and at the time when, the crime was committed, and if from the evidence the jury has a reasonable doubt as to the presence of the defendant at the place where, and at the time when, the offense was committed, they should acquit him." This instruction meets the criteria in Syllabus Point 2, State v. Alexander, 161 W.

1983Defendant’s Instruction No. 16: “The Court instructs the jury that while the burden of proving an alibi is on the defendant, on account of its affirmative nature, this does not dispense with the necessity of the state proving the actual presence of the defendant at the place where, and at the time when, the crime was committed, and if from the evidence the jury has a reasonable doubt as to the presence of the defendant at the place where, and at the time when, the offense was committed, they should acquit him." This instruction meets the criteria in Syllabus Point 2, State v. Alexander, 161 W.

1988The trial in Hutchinson occurred in October, 1983, after the alibi instruction had been declared unconstitutional in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982).

1986In Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982) cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982), the Fourth Circuit Court of Appeals ruled that the Alexander instruction offended the Federal Constitution by shifting to the defendant the burden of persuasion with respect to an essential element of the offense charged, namely, presence at the scene of the crime.

1988The trial in Hutchinson occurred in October, 1983, after the alibi instruction had been declared unconstitutional in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982).

1986In Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982) cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982), the Fourth Circuit Court of Appeals ruled that the Alexander instruction offended the Federal Constitution by shifting to the defendant the burden of persuasion with respect to an essential element of the offense charged, namely, presence at the scene of the crime.

1988The trial in Hutchinson occurred in October, 1983, after the alibi instruction had been declared unconstitutional in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982).

1988The trial in Hutchinson occurred in October, 1983, after the alibi instruction had been declared unconstitutional in Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853 , 103 S.Ct. 119 , 74 L.Ed.2d 104 (1982).

1996If there was predisposition, said the Court, the government instilled it. 503 U.S. at 552-53 , 112 S.Ct. at 1542-43 , 118 L.Ed.2d at 186-87 . [4] The Supreme Court stated in Jacobson , that where the defendant relies upon the defense of entrapment, "the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." 503 U.S. at 549 , 112 S.Ct. at 1540 , 118 L.Ed.2d at 184 .

1996If there was predisposition, said the Court, the government instilled it. 503 U.S. at 552-53 , 112 S.Ct. at 1542-43 , 118 L.Ed.2d at 186-87 . [4] The Supreme Court stated in Jacobson , that where the defendant relies upon the defense of entrapment, "the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." 503 U.S. at 549 , 112 S.Ct. at 1540 , 118 L.Ed.2d at 184 .

1987Its language was: “The Court instructs the jury that where the State of West Virginia has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon the defendant to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a decree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the defendant.” 173 W.Va. at 47-48, 311 S.E.2d at 417 . 10 .

1983Syllabus Point 4, State v. Jackson, 171 W.Va. 329 , 298 S.E.2d 866 (1982).

1983Syllabus Point 4, State v. Jackson, 171 W.Va. 329 , 298 S.E.2d 866 (1982).

1981Nuckolls expressly overruled syllabus point 6 of State v. Grimm, 156 W.Va. 615 , 195 S.E.2d 637 (1973), where we held that an instruction on a defendant’s disposition constituted impermissible advice to the jury on the question of “punishment”, a matter for the Court to consider and not the jury.

1981Nuckolls expressly overruled syllabus point 6 of State v. Grimm, 156 W.Va. 615 , 195 S.E.2d 637 (1973), where we held that an instruction on a defendant’s disposition constituted impermissible advice to the jury on the question of “punishment”, a matter for the Court to consider and not the jury.

1970Va. 688 , pt. 1 syl., 166 S. E.2d 119 . *758 Objection is made to the burden of proof aspect of State’s Instruction No. 2 which is as follows: “The Court instructs the jury that where the State has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the accused.” We are of the

1970An instruction substantially identical to State’s Instruction No. 2 was held to be proper in State v. Wendling, 112 W.