-dissenting.
The jury in this case received the following instruction: "There is a presumption in the law that all persons are sane and intend the reasonable, foreseeable consequences of their acts." In contrast to the majority viewpoint, I believe the giving of this instruction was reversible error.
Two United States Supreme Court cases have dealt with this issue, both holding that instructions of this nature shift the burden of persuasion on the issue of intent to the defense in violation of the Fourteenth Amendment requirement that the State prove every element beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The majority concludes the giving of this instruction was not reversible error due to the fact another instruction more specifically dealing with the intent element was also given. However, as the Supreme Court stated in Fronmeis, "[njothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." 105 S.Ct. at 1975. The jury could have relied solely on the infirm instruction or could have interpreted the two instructions to mean that proof beyond a reasonable doubt as to intent could be satisfied by the presumption. The possibility of an impermissible shift in the burden of proof demands reversal.