dissenting:
I dissent on the grounds that the Court has misread the intent of W. Va. Code, 49-5-10(d)(l) [1978] which was designed to remove an impossible standard of proof concerning the juvenile’s capacity for rehabilitation. The plain language of the statute permits a judge to transfer a juvenile upon a showing of probable cause to believe that the juvenile committed treason or one of the violent felonies enumerated in the statute.
This Court has conveniently ignored the legislative history of transfer proceedings. The Legislature first rewrote this section in response to Lycans v. Bordenkircher, _ W.Va. _, 222 S.E.2d 14 (1975), where this Court upheld the conviction and penitentiary sentence of a sixteen year old boy for unarmed robbery. In that case, the juvenile had been indicted for armed robbery, a capital offense. Responding to that harsh result, the Legislature rewrote the applicable law and enacted the requirement that the State prove under W. Va. Code, 49-*4825-10(a) [1977] that there were no reasonable prospects for rehabilitating the child through any other resources. As our Court recognized recently “[t]he burden of proving this negative proposition is without doubt difficult, but certainly not insurmountable.” State v. M. M., _ W.Va. _, 256 S.E.2d 549, 555 [1979].
The Legislature obviously believed that they had overreacted; consequently, in the 1978 amendment they removed the requirement that the State prove the juvenile a complete loss to society, beyond all hope of redemption. The majority’s assertion that the State carries the burden of establishing by clear and convincing proof all the factors and grounds relied upon to obtain transfer is perfectly valid under the old law, but under existing law, which rewrote the 1977 juvenile Act, this burden is removed with regard to certain named, dangerous crimes. Presumably the Legislature believed, as I do, that the burden of proving a delinquent beyond hope of redemption is not just “without a doubt difficult,” but plainly insurmountable. The majority has chosen to continue to place this burden on the State and to ignore the plain language of the statute. Court interpretation has indicated that all juveniles will be treated as wayward children when, in fact, many are dangerous, violent felons. Society is entitled to protection against violent children and the Legislature spoke forcefully to the subject in this provision of the Code.1
A comparison of the 1977 amendment covering transfer with the 1978 amendment reveals the Legislature’s intent to transfer juveniles to adult criminal jurisdiction if there is probable cause to believe they committed certain heinous crimes enumerated in (d)(1). The pertinent provisions are:
1977 Amendment
§ 49-5-10. TRANSFER OF JURISDICTION.
(a) Upon motion of the prosecuting attorney, or upon the recommendation of the referee or upon its own motion, the court may at the time specified in section nine of this article transfer to a criminal proceeding the case of a child who is alleged to have committed, on or after his sixteenth birthday, an offense which, if committed by an adult, would be a felony if there is clear and convincing proof that: (1) The offense alleged*483ly committed by the child is one of violence or evidences conduct which constitutes a substantial danger to the public; and (2) there are reasonable prospects for rehabilitating the child through resources available to the court under this article. With reference to such rehabilitation prospects the court shall consider the child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and such other matters as the court may deem appropriate. The burden of proof in any transfer hearing shall rest with the petitioner. (Emphasis added.) W. Va. Code, 49-5-10 [1977],
1978 Amendment
§ 49-5-10. WAIVER AND TRANSFER OF JURISDICTION.
(a) Upon written motion of the prosecuting attorney filed at least eight days prior to the adjudicatory hearing and with reasonable notice to the child, the parents, guardians, or custodians of the child, and the child’s counsel, the court shall conduct a hearing to determine if juvenile jurisdiction should be waived and the proceeding should be transferred to the criminal jurisdiction of the court. Any motion filed in accordance with this section shall state, with particularity, the grounds for the requested transfer, including the grounds relied upon set forth in subsection (d) of this section, and the burden shall be upon the State to establish such grounds by clear and convincing proof. Any hearing held under the provisions of this section shall be held within seven days of the filing of the motion for transfer unless it is continued for good cause.
(d) The court may, upon consideration of the child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is a probable cause to believe that:
(1) The child has committed the crime of treason under section one [§ 61-1-1], article one, chapter sixty-one of this Code; the crime of murder under sections one, two and three [§§ 61-2-1, 61-2-2, and 61-2-3], article two, chapter sixty-one of this Code; *484the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve [§ 61-2-12], article two, chapter sixty-one of this Code; the crime of kidnapping under section fourteen-a [§ 61-2-14a], article two, chapter sixty-one of this Code; the crime of first degree arson under section one [§ 61-3-1], article three, chapter sixty-one of this Code; or charging sexual assault in the first degree under section three [§ 61-8B-3], article eight-B, chapter sixty-one of this Code, and in such case, the existence of such probable cause shall be sufficient grounds for transfer without further inquiry, or .... (Emphasis added.) W. Va. Code, 49-5-10 [1978].