Our Court has routinely upheld jury instructions using permissive language, such as "may infer" in jury instructions on the element of intent. In State v. Wright, 162 W.Va. 332, 249 S.E.2d 519 (1978) our Court upheld the instruction that [i]nsofar as the jury was permitted but not required to find from the evidence that the defendant had the intent to kill, and insofar as the jury was properly and adequately advised of the State's duty to prove intent to kill beyond a reasonable doubt, the giving of the instruction that "the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act."
State v. Joseph, 214 W. Va. 525, 532-33, 590 S.E.2d 718, 725-26 (2003). Because Mr. Ferguson has been convicted of voluntary manslaughter, the mental state he must challenge is the intent to kill See State v. Wright, 162 W. Va. 332, 334, 249 S.E.2d 519, 521 (1978) ("It is fundamental in this jurisdiction that voluntary manslaughter requires [an] intent to kill. State v. Hamrick, [160] W. Va. [673], 160 W. Va. 673, 236 S.E.2d 247 (1977); State v. Blizzard, 152 W. Va. 810, 166 S.E.2d 560 (196[9]); State v. Duvall, 152 W. Va. 162, 160 S.E.2d 155 (1968); State v. Reppert. 132 W. Va. 675, 52 S.E.2d 820 (1949); State v. Foley. 131 W. Va. 326, 47 S.E.2d 40 (1948); and State v. Barker. 128 W. Va. 744, 38 S.E.2d 346 (1946).").
State v. Hamrick, [160] W. Va. [673], 236 S.E.2d 247 (1977); State v. Blizzard, 152 W. Va. 810, 166 S.E.2d 560 (196[9]); State v. Duvall, 152 W. Va. 162, 160 S.E.2d 155 (1968); State v. Reppert, 132 W. Va. 675, 52 S.E.2d 820 (1949); State v. Foley, 131 W. Va. 326, 47 S.E.2d 40 (1948); and State v. Barker, 128 W. Va. 744, 38 S.E.2d 346 (1946).State v. Wright, 162 W. Va. 332, 334, 249 S.E.2d 519, 521 (1978). Because felony-murder requires the intent to commit the predicate felony, rather than the intent to commit the homicide resulting therefrom, voluntary manslaughter is not a lesser included offense to felony-murder.
For example, in syllabus point 3 of State v. Greenlief, 168 W. Va. 561, 285 S.E.2d 391 (1981), we held: "An instruction in a criminal trial which allows the jury to infer rather than presume the intent of the defendant avoids the shifting of the burden of proof and is therefore constitutionally permissible." See also State v. Less, 170 W. Va. 259, 294 S.E.2d 62 (1981); State v. White, 167 W. Va. 374, 280 S.E.2d 114 (1981); State v. Ferguson, 165 W. Va. 529, 270 S.E.2d 166 (1980); State v. Wright, 162 W. Va. 332, 249 S.E.2d 519 (1978). We find no error in the giving of State's Instruction No. 5.
The trial judge gave the following instruction: "The Court instructs the jury that the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act." This Court specifically upheld this instruction in State v. Wright, 162 W. Va. 332, 249 S.E.2d 519 (1978). Where the jury is permitted, but not required, to infer from the evidence that the defendant had the intent necessary for conspiracy to commit an offense against the State, and the jury is properly and adequately advised of the State's duty to prove that intent beyond a reasonable doubt, the giving of the instruction "that the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act," is not error.
The Court instructs the jury that you may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his own act. We discussed language nearly identical to that used here in State v. Wright, 162 W. Va. 332, 249 S.E.2d 519 (1978), Syllabus Point 2: Insofar as the jury was permitted but not required to find from the evidence that the defendant had the intent to kill, and insofar as the jury was properly and adequately advised of the State's duty to prove intent to kill beyond a reasonable doubt, the giving of the instruction that "the jury may infer that a person intends to do that which he does, or which is the natural or necessary consequence of his act" was not reversible error in this case.
Based on post- Pendry decisions, the State contends that if an instruction (1) is not couched in mandatory terms; and (2) does not sift the burden of proof to the defendant for any material element of the crime, it is not constitutionally defective. See, State v. Wright, ___ W. Va. ___, 249 S.E.2d 519 (1978); syl. pt. 3, State v. Starkey, ___ W. Va. ___, 249 S.E.2d 219 (1978). The State also argues that other instructions adequately and properly informed the jury of the State's burden of proof and that an examination of the instructions as a whole reveals the jury was properly instructed as to the law of the case.