concurring:
I concur in the majority’s holding that the rule of Mullaney v. Wilbur, 421 U.S. 684 (1975), incorporated in *174our case of State v. Pendry, W.Va. 227 S.E.2d 210 (1976), is fully and completely retroactive, extending even to permit collateral attack upon convictions not in the process of direct appellate review at the time Pendry or Mullaney were decided. This is justified exclusively because the United States Supreme Court has determined that the primary purpose of the new constitutional rule set forth in Mullaney 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.” Hankerson v. North Carolina, U.S. at (1977) quoting Ivan V. v. City of New York, 407 U.S. 203 at 204 (1972). We are of course bound to follow the dictates of Hanker-son in determining the retroactivity of Mullaney and Pendry in West Virginia.
Making Mullaney completely retroactive poses obvious problems, which Mr. Justice Powell noted in his concurring opinion filed in Hankerson:
[Hjolding that a new constitutional principle is fully retroactive also may result in serious costs. Convictions long regarded as final must be reconsidered on collateral attack; frequently they must be overturned for reasons unrelated to the guilt or innocence of the prisoner, and in spite of good-faith adherence on the part of police, prosecutors and courts to what they understood to be acceptable procedures. Society suffers either the burden on judicial and prosecutorial resources entailed in retrial or the miscarriage of justice that occurs when a guilty offender is set free only because effective retrial is impossible.
Footnote 8 of the majority opinion in Hankerson suggests a solution to these problems for state courts:
Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions was as well *175settled in the States that have them as respondent asserts, then it is unlikely that prior to Mul-laney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed. Rule Crim. Proc. 30.
We, however, despite respondent’s urging, have declined to resort to such a trap of procedure, the last avenue of escape for the third rate legal technician, even to achieve a laudatory result. It seems utterly nonsensical to deprive an innocent man of his liberty because his lawyer failed at his trial to make what would have been regarded, under the law of that time, as frivolous objections to instructions. I think it worth repeating in this context my statement that, “to the extent possible, under modern concepts of jurisprudence, legal contests should be devoid of those sporting characteristics which gave law the quality of a game of forfeits or trial by ambush.” Rosier v. Garron, Inc., 156 W. Va. 861 at 875, 199 S.E.2d 50 at 58 (1973).
Another more sensible approach to the problems created by the retroactive application of Mullaney and Pendry is the use of the simple, but firmly established, principle that convictions need not be overturned where the constitutional error charged to have occurred is harmless beyond a reasonable doubt. State v. Blair, W.Va. , 214 S.E.2d 330 (1975); State v. Thomas, W.Va., 203 S.E.2d 445 (1974). Certainly the harmless error doctrine is as much a part of our State procedural law as the requirement that a defendant object to instructions. While the United States Supreme Court’s suggestion that we impale malefactors on the petard of counsel’s failure to object to the offending instruction is deceptively attractive, it is logically absurd because in this jurisdiction the defendant would probably be able to *176argue successfully ineffective assistance of counsel, particularly if it were determined that the truth-finding function of the trial had, in fact, been impaired.
Obviously the United States Supreme Court’s deference to the application of state procedural law is a response to the prospect which Hankerson raises of having countless thousands of armed robbers, murderers, kidnappers, and other miscreants released. I do not find this circumspection misplaced.
While one must be in sympathy with the United States Supreme Court’s constant striving to further human dignity and achieve fair administration in criminal justice throughout the nation; nonetheless, one must also be in sympathy with the average citizen whose life and property are constantly in jeopardy. As the poet Hart Crane once observed: “There is the world dimensional for those untwisted by the love of things irreconcilable.” Nowhere are the complexities of our goals more obvious than in criminal law which has been used as a vehicle to effect far-reaching ends in the area of human and civil rights unrelated to the bare issue of convicting the guilty and freeing the innocent. It is because criminal law is concerned as much with the proper relationship between citizen and state as with guilt and innocence that society finds it difficult to accept the courts as engines of justice. Ordered liberty demands a high tolerance for paradox; Hart Crane’s dilemma is not a daunting presence in Russian jurisprudence. The practical problem in so many constitutional questions which confront us is that when civil and human rights are involved we cannot accomplish all of society’s goals— choice is thrust upon us; we are confronted by Hart Crane’s quandary, and must accept the odium which is the consequence of making difficult choices.
However, this is not the case with the retroactive application of Mullaney and Pendry. Mullaney is a case about truth, and it is concerned exclusively with freeing the innocent. Unlike other areas of criminal procedure there is no ancillary societal benefit to be derived from *177freeing the guilty. This is not in any way a case about the proper relationship between the State’s agents and private citizens where the sanction of denying the State a conviction is essential to protect human rights.
Accordingly I would argue that the courts of this State should vigorously apply our harmless error doctrine. Where it appears that the evidence is so overwhelmingly against the defendant; his defense is so utterly unrelated to any of the intricacies of the question of intent which is the subject of the offending instruction; and, the defective instruction was harmless error in all other regards beyond a reasonable doubt, the court should dismiss a collateral challenge to a prior conviction based on Mullaney grounds. As we have been authorized to apply state law by Hankerson’s footnote 8 I would prefer to announce forthrightly what we are doing rather than to rely on procedural casuistry.
It is impossible to apply the harmless error doctrine in the case before us, because the pleadings, briefs and arguments were framed to raise solely the legal question of Mullaney’s and Pendry’s retroactivity. Accordingly, inasmuch as I concur in the legal principle announced today, I also concur in the result which necessarily follows from the principle’s application to the limited record before us. In the future the correct course should be for the State to produce the entire record so that the trial court may apply the harmless error doctrine where appropriate.
I am authorized to say that Mr. Chief Justice Caplan joins in this concurrence.