McHUGH JUSTICE:

This is an appeal by Glen N. Bowman, Sr., from an order of the Circuit Court of Marshall County, entered on December 13, 1978, denying his petition for a writ of habeas corpus. The appellant assigns the summary dismissal of his petition as error and asks this Court to consider his substantive claims to relief.

Glen N. Bowman, Sr., is currently serving a life sentence in the West Virginia Penitentiary at Moundsville. He was sentenced by an order of the Intermediate Court of Kanawha County, dated June 13, 1969, to life imprisonment after a jury returned a verdict of guilty of first degree murder. That order was appealed and this Court affirmed the judgment in State v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971). The facts of the criminal case which underlie this post-conviction relief proceeding are fully set forth in that opinion.

I. THE PROCEDURAL QUESTION

On September 26, 1977, this Court refused to hear a petition for a writ of habeas corpus filed by Glen N. Bowman, Sr. That petition sought relief based upon State v. Pendry, 159 W. Va. 738, 227 S.E.2d 210 (1976). The petition was filed again on June 6, 1978, after this Court's decision in Jones v. Warden, 161 W. Va. 168, 241 S.E.2d 914 (1978). We once again refused to entertain the petition. On June 27, 1978, Bowman filed a petition for habeas corpus in the Circuit Court of Marshall County that advanced substantially the same contentions, and relied substantially upon the same grounds, as those petitions which previously had been refused by this Court. On December 13, 1978, the circuit court held that this Court had refused the contentions put forth in the appellant's petition and that such refusal was res judicata to the contentions and grounds in the petition before it. On that basis the circuit court denied the relief sought and this appeal followed.

The appellant argues that the denial of relief in the Circuit Court of Marshall County, on the grounds that the summary refusal by this Court of similar contentions was res judicata, was error. The appellant says that under W. Va. Code, 53-4A-1(b) [1967], a contention raised in a post-conviction habeas corpus petition is only finally adjudicated when there has been a decision on the merits after a full and fair hearing.

The West Virginia Legislature has provided for post-conviction habeas corpus relief in W. Va. Code, 53-4A-1, et seq. The scope of such relief is set forth in W. Va. Code, 53-4A-1(a) [1967]:

Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for a writ of habeas corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief, if and only if such contention or contentions and the grounds in fact or law relied upon in support thereof have not been previously and finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings which the petitioner has instituted to secure relief from such conviction or sentence. Any such petition shall be filed with the clerk of the supreme court of appeals, or the clerk of any circuit court, said supreme court of appeals and all circuit courts of this State having been granted original jurisdiction in habeas corpus cases by the Constitution of this State, or with the clerk of any court of record of limited jurisdiction having criminal jurisdiction in this State. . . .

This subsection allows for post-conviction habeas corpus review "if and only if" the contention or contentions raised by the petitioner have not been previously and finally adjudicated or waived in the petitioner's criminal trial and appeal or in previous habeas corpus proceedings. We have considered what constitutes a waiver of contentions in the recent case of Losh v. McKenzie, ___ W. Va. ___, 277 S.E. 606 (1981). The case presently before us raises the question of what constitutes a final adjudication of contentions presented in a petition for post-conviction habeas corpus relief. W. Va. Code, 53-4A-1(b) [1967], directly addresses that issue:

For the purposes of this article, a contention or contentions and the grounds in fact or law relied upon in support thereof shall be deemed to have been previously and finally adjudicated only when at some point in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, there was a decision on the merits thereof after a full and fair hearing thereon and the time for the taking of an appeal with respect to such decision has not expired or has expired, as the case may be, or the right of appeal with respect to such decision has been exhausted, unless said decision upon the merits is clearly wrong.

It is not denied that the three contentions advanced by the appellant in this case were raised and resolved against him at his trial in the Intermediate Court of Kanawha County and on his appeal after his conviction. See State v. Bowman, supra. The appellant, however, argues that W. Va. Code, 53-4A-1(d) [1967], applies to his case and, therefore, we should consider the substance of his contentions. W. Va. Code, 53-4A-1(d) [1967], provides:

For the purposes of this article, and notwithstanding any other provisions of this article, no such contention or contentions and grounds shall be deemed to have been previously and finally adjudicated or to have been waived where, subsequent to any . . . proceeding or proceedings in which said question otherwise may have been waived, any court whose decisions are binding upon the supreme court of appeals of this State or any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or the Constitution of West Virginia, or both, impose upon State criminal proceedings a procedural or substantive standard not theretofore recognized, if and only if such standard is intended to be applied retroactively and would thereby affect the validity of the petitioner's conviction or sentence.

A review of the appellant's substantive claims to relief, which were briefed and argued on this appeal, reveal them to be without merit under the standards set in these statutes. The circuit court's dismissal of the writ was, therefore, not error because W. Va. Code, 53-4A-1(d) does not apply to this case. We affirm the judgment of the Circuit Court of Marshall County.

II. THE SUBSTANTIVE ISSUES

In his petition for post-conviction habeas corpus relief, the appellant, Glen N. Bowman, Sr., as the basis upon which he seeks relief, asserts that three erroneous instructions were given to the jury at his trial on the first degree murder charge. We will consider each instruction in order.

A. State's Instruction Number Four

The State's instruction number four read:

The Court instructs the jury that mere words, however `insulting or opprobrious' they may be, communicated directly or indirectly to the defendant, will neither justify or [sic] excuse the defendant from the commission of an assault upon a person, and as a matter of law, where the defendant has committed such an assault with a deadly weapon, proof that the victim or his wife uttered such words is not sufficient provocation to justify such an assault.

The appellant argues that this instruction violates the principle of State v. Pendry, supra, by relieving the State of its burden of proof on a material element of the crime charged. In State v. Pendry we held, in syllabus point 4:

In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary.

State's instruction number four did not use or create any presumption. The instruction is a correct statement of the law on the point in this jurisdiction. See State v. Toler, 129 W. Va. 575, 41 S.E.2d 850 (1946); Syl. pt. 7, State v. Snider, 81 W. Va. 522, 94 S.E. 981 (1918). The instruction did not relieve the State of any material element of its burden of proof not did it shift any burden to the appellant. It was not error on the part of the trial judge to give that instruction. This assignment of error was finally adjudicated on the appellant's original appeal. Because this instruction is not invalidated by State v. Pendry, supra, the trial judge's dismissal of the contention was proper under W. Va. Code, 53-4A-1, et seq.

B. State's Instruction Number Five

The State's instruction number five read:

The Court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Glen N. Bowman, Sr., shot, wounded and killed Thomas Freeman Hart, and that he, the said Glen N. Bowman, Sr., relies upon self-defense to excuse him from such act, the burden of showing such excuse is on the defendant, and to avail him of such defense he must prove to the satisfaction of the jury by a preponderance of the evidence, or it must appear from all the evidence and circumstances in the case that at the time he shot and wounded the said Thomas Freeman Hart he believed and had reasonable grounds to believe that he was in imminent danger of death or great bodily harm at the hands of the said Thomas Freeman Hart, for the purpose of protecting himself from such apparent danger, believing and having reasonable grounds to believe at the time he shot and wounded the said Thomas Freeman Hart that said shooting and wounding was necessary in order to protect himself from death or great bodily harm at the hands of the said Thomas Freeman Hart, but the Court instructs the jury that the defendant acted at his peril, as the jury must pass upon all his actions in the premises, from all the facts and circumstances of the case.

This instruction, relating to self-defense, was disapproved for the first time by this Court in State v. Kirtley, ___ W. Va. ___, 252 S.E.2d 374 (1979), where we held, at syllabus point 4: "Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense." The disapproval of the type of instruction given at Bowman's trial was based, however, on a reinterpretation of the "appropriate judicial balance of the burden of proof of self-defense." 252 S.E.2d at 380. We made it clear that the rule announced in the case was "not bottomed on constitutional due process principles." 252 S.E.2d at 381. We also explicitly held that the decision was not to be applied retroactively. 252 S.E.2d at 381, 382. We recently reaffirmed this holding in State v. Gangwer, ___ W. Va. ___, 283 S.E.2d 839 (1981), where we said: "Clearly, the discussion in Kirtley regarding retroactivity was designed to preclude `full retroactivity' so that the Kirtley rule could not be applied by way of a collateral attack in habeas corpus on a final conviction." 283 S.E.2d at 842. We abide by those decisions today and find, therefore, that the instruction here complained of, although erroneous under current law after State v. Kirtley, is not a basis upon which post-conviction relief may be properly granted under W. Va. Code, 53-4A-1(d) [1967]. The trial judge's dismissal of this contention was, therefore, proper. State v. Kirtley was not based on the federal or state constitution and was not intended to be applied retroactively.

C. State's Instruction Number Six-a

The State's instruction number six-a read: "The Court instructs the jury that the law is that a person is presumed to intend that which he does or which is the natural and necessary consequence of his own act." There is no question that this presumption instruction, were it to be given in a trial today, would violate a defendant's right to due process of law as that right is now understood. See Sandstrom v. Montana, 442 U.S. 510,

99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. O'Connell, 163 W. Va. 366, 256 S.E.2d 429 (1979). Due process is, however, the "least frozen concept of our law — the least confined to history and the most absorptive of powerful social standards of a progressive society." Griffin v. Illinois, 351 U.S. 12, 20-21, 76 S.Ct. 585, 591, 100 L.Ed. 891, 900 (1956) (Frankfurter, J., concurring).

The appellant argues that the instruction in this case was erroneous under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and State v. Pendry, supra, and that those cases have been accorded full retroactive application in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and Jones v. Warden, supra. We find, however, that Mullaney v. Wilbur and State v. Pendry are distinguishable.

1. Mullaney v. Wilbur and State v. Pendry distinguished

The United States Supreme Court, in Mullaney v. Wilbur, supra, invalidated a jury instruction which said that "malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." 421 U.S. at 686, 95 S.Ct. at 1883. The specific wording of the instruction was not reported. The Supreme Court held that the instruction was a violation of due process because it shifted the burden of proof to the defendant on a material element of the offense with which he was charged.

This Court followed Mullaney v. Wilbur, supra, in State v. Pendry, supra, where we said the following instruction was not proper:

The Court instructs the jury that the law is that a man is taken to intend that which he does, or which is the natural and necessary consequences of his own act; and, therefore, if they believe from the evidence that Parker Lee Pendry shot and killed the deceased, Cecil Hagerman, by the deliberate use of an instrument likely to produce death, under the circumstances, then the presumption of the law, arising in absence of proof to the contrary, is that he intended the consequences that resulted from said use of said deadly instrument.

227 S.E.2d at 218. State v. Pendry, at the time it was decided, was given only limited retroactive effect. 227 S.E.2d at 224.

In Hankerson v. North Carolina, supra, the United States Supreme Court, gave Mullaney v. Wilbur, supra, full retrospective application. The instruction in Hankerson v. North Carolina read:

If the State proves beyond a reasonable doubt or it is admitted that the defendant intentionally killed Gregory Ashe with a deadly weapon, or intentionally inflicted a wound upon Gregory Ashe with a deadly weapon, that proximately caused his death, the law raises two presumptions; first, that the killing was unlawful, and second, that it was done with malice. . . . Then there will be some other things I will charge you about, but, nothing else appearing, if you are satisfied of those two things beyond a reasonable doubt then you would find the defendant guilty of second degree murder. . . . [I]n order to excuse his act altogether on the grounds of self-defense, the defendant must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense.

432 U.S. at 236-237, 97 S.Ct. at 2342.

This Court, in Jones v. Warden, supra, followed Hankerson v. North Carolina, supra, and extended full retroactive effect to our holding in State v. Pendry, supra. The instruction in Jones v. Warden said:

The Court instructs the jury that the law is that a man is taken to intend that which he does, or which is the natural and necessary consequences of his own act; and, therefore, if they believe from the evidence that Roger Dale Jones shot and killed the deceased, Crockett Boothe, by the deliberate use of an instrument likely to produce death, under the circumstances, then the presumption of law, arising in absence of proof to the contrary, is that he intended the consequences that resulted from said use of said deadly instrument.

241 S.E.2d at 915.

We must compare the Mullaney v. Wilbur type instruction with the Sandstrom v. Montana type instruction. If they are the same, we need go no further to hold for the appellant. The type of instruction found in Sandstrom v. Montana, supra, State v. O'Connell, supra, and in this case, is, however, different from those found in the four cases discussed above. In this case the trial judge simply instructed the jury that "the law is that a person is presumed to intend that which he does or which is the natural or necessary consequences of his own act."

The instruction in this case, like those in Sandstrom v. Montana, supra, and State v. O'Connell, supra, did not contain the detailed recitation of facts that is found in the instructions in the Mullaney line of cases. The instruction here did not emphasize, or even mention, the use of a deadly weapon or instrument.

Even more significant, however, is that in each of the instructions in the Mullaney line of cases the burden of proof was explicity shifted to the defendant, i.e., the jury was instructed that there was an obligation on the part of the defendant to disprove some aspect of the case or else a presumption would provide that element of the State's case. That is not the situation found in the case presently before us or in Sandstrom v. Montana, supra, and State v. O'Connell, supra. Indeed, in the case here under consideration, the jury was forcefully instructed that the defendant had no burden whatsoever and that the State had it all. See n. 6, supra.

Another important distinction is that, although the substantive issue decided in Sandstrom v. Montana and State v. O'Connell is similar to the substantive issue decided in Mullaney v. Wilbur and State v. Pendry, the basis of the holding in Sandstrom and O'Connell was different. The instruction in Sandstrom v. Montana, unlike the one in Mullaney v. Wilbur, did not explicitly shift the burden of proof to the defendant; nor was the Sandstrom instruction held to be a conclusive presumption which would have fallen under Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). The United States Supreme Court, however, found that there was a danger that the "jury may have interpreted the . . . instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co. . . ." 442 U.S. at 524, 99 S.Ct. at 2459. The key element was not what was said to the jury so much as the possibility that the jury might have misunderstood what was said. The Supreme Court, on that basis, held the giving of the instruction to be error. Similar reasoning was used in State v. O'Connell, supra. The type of instruction used at Bowman's trial in 1969 is, therefore, different from those used in the Mullaney line of cases and must be analyzed under Sandstrom v. Montana and State v. O'Connell rather than under Mullaney v. Wilbur and State v. Pendry.

2. The Issue

The Mullaney v. Wilbur type instruction, and the holding in that case, is distinguishable from the holding and type of instruction found in Sandstrom v. Montana. The specific issue to be decided in the case before us, therefore, is whether the holding of Sandstrom v. Montana and State v. O'Connell is to be applied retroactively by way of post-conviction habeas corpus to a case in which judgment was entered a decade prior to the decisions in those cases. This issue is separate and distinct from the question of the retrospective application of Mullaney v. Wilbur and State v. Pendry.

In Hankerson v. North Carolina, supra, and Jones v. Warden, supra, it was decided that the rule disallowing the use of an instruction that explicitly shifts the burden of proof to the defendant was to be applied retroactively. The case before us, on the other hand, presents the question of whether the prophylactic rule of Sandstrom v. Montana and State v. O'Connell disallowing an instruction that merely uses the term "presume" and thereby raises a possibility of jury misinterpretation is to be given full retrospective application. This question has not been addressed by either this Court or the United States Supreme Court. While cases relating to the retroactive application of Mullaney v. Wilbur and State v. Pendry are instructive on this issue, they are not controlling. We must now turn to an analysis of whether, under United States Supreme Court precedent, Sandstrom v. Montana should be given full retrospective application or was intended to be so applied.

3. United States Supreme Court precedent

In 1956 the United States Supreme Court began major revisions in constitutional criminal procedure with the holding that indigent defendants must be given a copy of their trial transcripts on appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Between 1956 and 1965 other significant cases followed. Many of the cases were applied retroactively although the issue of retrospective application was rarely discussed. In 1965, the United States Supreme Court started to recognize the possible consequences of extending full retroactive effect to every newly announced rule of constitutional criminal procedure.

The retroactivity, or more accurately, the prospective application, doctrine was first given expression in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In that case the court announced a three-pronged test by which it would decide whether a criminal decision based on the constitution would be given retroactive application: "[W]e must look to the purpose of the [new] rule; the reliance placed upon the [old] doctrine; and the effect on the administration of justice of a retrospective application of [the new rule]." 381 U.S. at 636, 85 S.Ct. at 1741.

In the years since Linkletter v. Walker, the United States Supreme Court has frequently addressed the retroactivity issue. Generally, in all those cases the test has been essentially the same as that announced in Linkletter v. Walker. The application of the test, however, has varied widely. Indeed, it was said, in Mackey v. United States, supra, 401 U.S. at 676, 91 S.Ct. at 1172, that the "subsequent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim." Although the tracks may be difficult to follow, they are discernible by careful observation.

The Supreme Court, in holding that Mullaney v. Wilbur, supra, was to be accorded full retroactive effect, said, citing, Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659, 661 (1972), "[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect." Hankerson v. North Carolina, 432 U.S. at 243, 97 S.Ct. at 2345 (emphasis in the original).

That rule was first announced in Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971). After stating the "major purpose rule," the Court, in Williams v. United States, went on to observe: "Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." Cf. Tehan v. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15 L.Ed.2d 453, 461-462 (1966); Mackey v. United States, supra, 401 U.S. at 714, 91 S.Ct. at 1171.

The purpose served by a new constitutional rule is, undoubtedly, a major factor in applying the Supreme Court's three prong retroactivity test. See Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, 255 (1969). However, before we apply this first prong of the Supreme Court's retroactivity test to the case before us, we need to examine it in more detail.

There are three aspects to the Williams v. United States major purpose test: (1) the major purpose of the new rule must be to (2) correct a flaw that substantially impairs the truth-finding function of trial and (3) thereby raises serious questions about the reliability of past verdicts. All three aspects of the Williams test must be satisfied before the need to apply the second two prongs of the Linkletter v. Walker test is obviated — those second two prongs being reliance and the impact on the administration of justice. A new rule that merely collaterally enhances the integrity of the truth-finding process will not be applied retroactively for that reason alone.

[T]he fact that a new rule tends incidentally to improve or enhance reliability does not in itself mandate the rule's retroactive application. . . . Thus, retroactivity is not required by a determination that the old standard was not the most effective vehicle for ascertaining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of several purposes in formulating the new standard was to prevent distortion in the process.

Gosa v. Mayden, 413 U.S. 665, 680, 93 S.Ct. 2926, 2936, 37 L.Ed.2d 873, 887-888 (1973). Also, some incorrect results that may have occurred due to the old rule is not enough to justify, by itself, retroactive application of the new rule. "Where we have been unable to conclude that the use of such a `condemned practice' in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect, we have

not accorded retroactive effect to the decision condemning that practice." Williams v. United States, supra, 401 U.S. at 655, 91 S.Ct. at 1154. See also Mackey v. United States, supra, 401 U.S. at 674, 91 S.Ct. at 1164.

The question of whether a displaced rule has substantially impaired the truth-finding process requires the application of a balancing test. "[T]he question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing `probabilities.'" Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 1970, 36 L.Ed.2d 736, 744 (1973). This balancing approach to the question of whether a displaced rule substantially impairs the truth-finding process was first announced in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). "[W]e emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree." 384 U.S. at 728-729, 86 S.Ct. at 1778. In that case the Supreme Court declined to apply the new rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), retroactively even though they did acknowledge that "confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature" and that the primary purpose of the new rules was "to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice." 384 U.S. at 729, 86 S.Ct. at 1778-1779. The Court found, however, that the rules of Escobedo and Miranda "encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion" and declined to apply the new rules retroactively. 384 U.S. at 730, 86 S.Ct. at 1779. To have applied the holdings of those cases retroactively "would have required the reversal of many convictions in which no serious constitutional violation had occurred." Michigan v. Payne, supra, 412 U.S. at 53, 93 S.Ct. at 1970.

The Supreme Court again used this balancing approach in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which refused to apply United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), retroactively. The Supreme Court conceded that, "A conviction which rests on a mistaken identification is a gross miscarriage of justice," and that, "the Wade and Gilbert rules . . . are . . . aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence. . . ." 388 U.S. at 297, 298, 87 S.Ct. at 1970. The Supreme Court also found, however, that retroactive application of the rules announced in Wade and Gilbert "will undoubtedly affect cases in which no unfairness will be present." The Supreme Court went on to hold that "the certainty and frequency with which we can say in the confrontation cases that no injustice occurred differs greatly enough from the cases involving absence of counsel at trial or on appeal to justify treating the situations as different in kind for the purpose of retroactive application, especially in light of the strong countervailing interests." 388 U.S. at 299, 87 S.Ct. at 1971.

In DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), the Supreme Court used the balancing approach to justify the refusal to apply Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), retroactively. Both Duncan v. Louisiana and Bloom v. Illinois concerned the right to trial by jury in criminal cases, which right "generally tends to prevent arbitrariness and repression." 392 U.S. at 633, 88 S.Ct. at 2095. The right to trial by jury is the very heart of the truth-finding function of our criminal justice system. Indeed, trial by jury is the truth-finding process. "Yet in DeStefano v. Woods (citation omitted), the Court by a per curiam opinion, denied retroactive application to those new constitutional holdings. The Court thus concluded that it did not follow that every judgment rendered in a Duncan or in a Bloom situation, prior to the decisions in those cases, was so infected by unfairness as to be null and void." Gosa v. Mayden, supra, 413 U.S. at 676, 93 S.Ct. at 2934. The Supreme Court, in DeStefano v. Woods, held: "The values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial." 392 U.S. at 634, 88 S.Ct. at 2095. Cf. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Hence, even if a new rule does seek to correct an aspect of trial that calls into question the integrity of the truth-finding process, the purpose of the rule may be "adequately served by prospective application" where there are countervailing considerations. Mackey v. United States, supra, 401 U.S. at 675, 91 S.Ct. at 1165.

Although the Supreme Court's cases seem to set forth "incompatible rules and inconsistent principles," Desist v. United States, supra, 394 U.S. at 258, 89 S.Ct. at 1038, we believe that a coherent analysis is possible under those cases.

4. Application of United States Supreme Court precedent to Sandstrom v. Montana a. The Major Purpose

The Supreme Court, in In re Winship, held: "Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the fact-finder of his guilt." 397 U.S. at 364, 90 S.Ct. at 1072. The purpose of that doctrine was to overcome an aspect of trial that did substantially impair the truth-finding function of trial and cast serious doubt upon the validity of prior convictions — the allowance of a finding of guilt on a less than beyond a reasonable doubt standard. See Ivan V. v. City of New York, supra. The same was true of the rule announced in Mullaney v. Wilbur, supra, where the burden of proof was explicitly shifted to the defendant by a jury instruction. Yet, it is recognized that "`there is always in litigation a margin of error, representing error in factfinding.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958). The constitutional requirement that guilt in criminal cases be proved beyond a reasonable doubt serves to limit, but cannot eliminate, the number of criminal defendants found guilty who are in fact innocent. See In re Winship, 397 U.S. 358, 370-372, 90 S.Ct. 1075-76, 25 L.Ed.2d 368 (1970). . . ." Williams v. United States, supra, 401 U.S. at 664, 91 S.Ct. at 1158.

The major purpose, then, of In re Winship, supra, was to correct a very substantial impairment of the fact-finding process that did raise serious questions about the validity of the verdict in every case where the new rule had not been followed. To effectuate that correction the case announced a new constitutional doctrine under the due process clause requiring the State to prove every material element of a crime charged beyond a reasonable doubt. In Mullaney v. Wilbur, supra, the jury was instructed that the State could prove a material element of a crime by a presumption unless the defendant offered proof in negation of the presumption. The effect of that instruction was the same as the practice condemned in In re Winship. See Hankerson v. North Carolina, supra. The shifting of the burden of proof by an explicit instruction clearly infected the fact-finding process and raised a substantial likelihood that prior verdicts may have been invalid in most, if not all, of the cases in which such an instruction had been given.

The Sandstrom v. Montana situation is, however, different. In that case the jury was not told that the State had a lesser burden of proof than that constitutionally required. Nor was it told that the defendant had any burden on any material element of the crime. In that case the jury was merely instructed that the law presumes a man to intend that which he does. The Supreme Court did not find that this instruction impermissibly lessened the State's burden of proof or that it impermissibly shifted the burden to the defendant. The instruction was condemned on the basis that the "jury may have interpreted the . . . instruction as constituting either a burden-shifting presumption . . . or a conclusive presumption. . . ." Sandstrom v. Montana, supra, 442 U.S. at 524, 99 S.Ct. at 2459. (Emphasis added). The error in the case was not so much the instruction itself but the possibility that the jury may have misinterpreted the instruction. The major purpose of the rule announced in Sandstrom v. Montana is, therefore, to further effectuate the Winship doctrine by reducing the risk of possible jury misinterpretation of instructions that could lead to an In re Winship, or a Mullaney v. Wilbur, type of error. This prophylactic rule is not designed to overcome an aspect of trial that substantially impairs the truth-finding function. The mere possibility of a jury misinterpreting an instruction cannot be said to be a substantial impairment of the truth-finding process at trial. After all, "[i]mplicit in [the] constitutional requirements of jury trial is a belief that juries can be trusted. . . ." Jackson v. Denno, 378 U.S. 368, 405, 84 S.Ct. 1774, 1796, 12 L.Ed.2d 908, 932 (1964). Our system of criminal justice could not operate if the effective presumption was that juries consistently misinterpret the instructions given to them by the court. Applying the rule of Sandstrom v. Montana retroactively would also "occasion windfall benefits for some defendants" Michigan v. Payne, supra, 412 U.S. at 53, 93 S.Ct. at 1970, and would "undoubtedly affect cases in which no unfairness" occurred. Stovall v. Denno, supra.

The purpose to be served by the prophylactic rule announced in Sandstrom v. Montana, therefore, would not be significantly furthered by full retrospective application. This is especially true in light of the countervailing considerations of finality of judgments; reliance on the prior rule allowing the instruction; the burden that retroactivity would have on the administration of justice; and the availability of other grounds of relief under Mullaney v. Wilbur, supra and In re Winship, supra, when the instruction goes beyond the mere possibility of jury misinterpretation and impinges upon the proper distribution, or level, of burden of proof. See Johnson v. New Jersey, supra; Michigan v. Payne, supra.

b. Reliance

The reliance placed on the pre- Sandstrom practice of allowing the disapproved instruction also militates against the retroactive application of the rule announced in that case. The case presently before us, for example, was tried in 1969, a full decade before the decision in Sandstrom v. Montana. The Sandstrom v. Montana rule was not foreshadowed prior to Mullaney v. Wilbur, supra. Indeed, it cannot be said that even Mullaney v. Wilbur clearly forewarned of the result in Sandstrom v. Montana as that holding was not mandated by Mullaney v. Wilbur. Rather, the holding in Sandstrom v. Montana was a new protective rule issued to prevent an unknowing encroachment upon the rights announced in Mullaney v. Wilbur and In re Winship. Who could have foreseen that the United States Supreme Court would find that the possibility of jury misinterpretation of the word "presume" would be equated to specifically shifting or lessening the burden of proof? The courts cannot be faulted for not anticipating Sandstrom v. Montana. "There was no clear foreshadowing of that rule." Adams v. Illinois, 405 U.S. 278, 283, 92 S.Ct. 916, 919, 31 L.Ed.2d 202, 208 (1972).

c. Burden on the administration of justice

The burden that retroactive application of the rule would place on the administration of justice also supports limiting the retroactive application of Sandstrom v. Montana to cases at trial or on appeal when it was decided. See n. 8, supra. In Tehan v. Shott, supra, only six states had followed the condemned practice but yet retroactivity was denied. It is even more true here than in Tehan v. Shott that the retroactive application of this new rule "would have an impact upon the administration of their criminal law so devastating as to need no elaboration. . . . At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine . . . harmless error." Stovall v. Denno, supra, 388 U.S. at 300, 87 S.Ct. at 1971. See also Adams v. Illinois, supra.

d. Conclusion

The major purpose of the rule announced in Sandstrom v. Montana, supra, was not to correct a substantial inadequacy in the fact-finding process which had lead to questionable verdicts. Williams v. United States, supra. Further, the retroactive application of the Sandstrom v. Montana rule would result in reversals, or at least require significant court review, in many instances where there was no actual prejudice and that result is not justified by any "countervailing considerations rooted in the purposes underlying" the rule announced in Sandstrom v. Montana. Michigan v. Payne, supra. Finally, the probability that the giving of a Sandstrom v. Montana type of instruction infected the fact-finding process at trial is not substantial enough to outweigh the countervailing considerations such as reliance on the old practice and the impact on the administration of justice. See Adams v. Illinois, supra; Stovall v. Denno, supra; Tehan v. Shott, supra; Johnson v. New Jersey, supra. Sandstrom v. Montana, therefore, should not be given full retroactive effect.

5. Retroactivity of State v. O'Connell

The same considerations and observations about the purpose served by the rule announced by the United States Supreme Court in Sandstrom v. Montana, supra, which were discussed above, apply with equal force to the purpose of the rule that this Court adopted in State v. O'Connell. The rule's main purpose is not to correct a substantial impairment of the truth finding function at trial.

The instruction that we condemned in State v. O'Connell, supra, was a very common instruction in this jurisdiction prior to 1979. "The instruction complained of or its equivalent has been given and approved in numerous decisions of this Court since its incorporation in the initial clause of Pendry-type instructions many years ago. See, Syl. pt. 11, State v. Cain, 20 W. Va. 679 (1882); State v. Kellison, 56 W. Va. 690, 47 S.E. 166 (1904); State v. Reppert, 132 W. Va. 675, 694-95, 52 S.E.2d 820, 832 (1949) and the decisions cited therein." State v. O'Connell, supra, 256 S.E.2d at 430. The instruction condemned in that case was susceptible of use, and was used, not just in murder trials but in any trial in which an element of the crime charged was intent. An instruction very similar to the one condemned in State v. O'Connell, supra, was approved by this Court as recently as 1974 in State v. Putnam, 157 W. Va. 899, 205 S.E.2d 815 (1974).

In State ex rel. Johnson v. Hamilton, ___ W. Va. ___, 266 S.E.2d 125 (1980); we said, at 128:

In determining whether to apply a change in the decisional law retroactively, the fundamental principle to which we have looked is reliance. Pnakovich v. State Workmen's Compensation Comm'r, W. Va., 259 S.E.2d 127 (1979); Bradley v. Appalachian Power Co., W. Va., 256 S.E.2d 879 (1979). Since a person or the State should be able to plan the course of civil or criminal litigation with reasonable reliance on current procedural rules, the reliance of the prosecution is an important element in considering whether to apply today's rule retroactively. Therefore since there is no substantial impairment of the truth finding function (citation omitted) we conclude that this is not a change in decisional law requiring retroactive application.

The giving of the instruction condemned in State v. O'Connell, supra, has only a minimal impact on the truth finding function of trial and the reliance on the prior practice of allowing the giving of the instruction has been tremendous. We, therefore, hold that the decision in State v. O'Connell, supra, does not require full retroactive application. The decisions in Sandstrom v. Montana and State v. O'Connell were not intended to be accorded full retroactivity and the change wrought by those cases does not affect the validity of the appellant's conviction or sentence. This contention does not provide a basis for relief under W. Va. Code, 53-4A-1(d) [1967], and was, therefore, properly dismissed by the trial judge.

Affirmed.