(dissenting):
I respectifully dissent. Although this court has upheld defendant Yates’ conviction of murder and armed robbery and sentence of death on three separate occasions, the United States Supreme Court, after denying certiorari on Yates’ direct appeal, has, on collateral review, twice reversed our decisions denying Yates’ Petition for Writ of Habeas Corpus. We are again required to consider the Petition. I do not believe that the latest decision of the Supreme Court in Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534, 98 L. Ed. (2d) 546 (1988) *220allows any further leeway on our part.
Yates and Davis robbed a store in rural Greenville County, near Tigerville in 1981. After Yates obtained the contents of the cash drawer from the proprietor at gunpoint and shot the proprietor in the hand, he fled the store. After Yates had run out of the store, the proprietor’s mother then entered the store. Davis stabbed her to death and was shot to death by the proprietor. Yates was convicted of armed robbery and the murder of the proprietor’s mother and sentenced to death. Intent or malice aforethought was a key element required to be proved by the State in order to convict Yates of murder. The jury was instructed “that malice is implied or presumed from the use of a deadly weapon.” Yates’ primary defense was that he was not in the store when the victim entered and did not intend to murder anyone.
In 1979, the Supreme Court held that an instruction which a reasonable juror could understand as mandating as a matter of law that he presume defendant’s criminal intent from a given set of circumstances violates the Fourteenth Amendment in that such an instruction improperly shifts the burden of proof from the State to the defendant. Such an instruction, the Supreme Court held, requires the jury to draw conclusions as to defendant’s intent from his actions and relieves the State of its burden of proving, and the jury of its burden of finding, intent beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. (2d) 39 (1979).
In 1983, this court held that it was error for a trial judge to instruct a jury in a case that malice is mandatorily presumed from the use of a deadly weapon. State v. Elmore, 279 S.C. 417, 308 S.E. (2d) 781 (1983). Prior to our decision in Elmore, we had affirmed Yates’ conviction on direct appeal [State v. Yates, 280 S.C. 29, 310 S.E. (2d) 805 (1982)] and summarily denied his petition for a writ of certiorari.
In 1985, the United States Supreme Court reversed a murder conviction and death penalty sentence in Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. (2d) 344 (1985), holding that where the accused’s only defense is that he did not have the required intent to kill, an instruction that intent is presumed from the use of a deadly weapon is error and cannot be considered harmless.
*221Shortly thereafter, the United States Supreme Court granted Yates’ petition for a writ of certiorari, vacated our judgment and remanded the case to this court for reconsideration in the light of its decision in Francis v. Franklin. See, Yates v. Aiken, 474 U.S. 896, 106 S. Ct. 218, 88 L. Ed. (2d) 218 (1985).
On remand, this court held that the jury instruction at issue suffered the same infirmities present in State v. Elmore, supra, and Francis v. Franklin. We, however, declined to apply the State v. Elmore standard retroactively. Yates v. Aiken, 290 S.C. 231, 349 S.E. (2d) 84 (1986). The retroactive application of Francis v. Franklin and the application of Sandstrom v. Montana was not addressed. This court, therefore, denied the petition for a writ of habeas corpus.
In January of this year, the United States Supreme Court, in a unanimous opinion, again considered Mr. Yates’ petition for habeas corpus relief in Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534, 98 L. Ed. (2d) 546 (1988). The Court described its first remand to this .court as one “predicated entirely on the fact that petitioner’s challenge to the jury instruction asserted a substantial federal question.” 108 S. Ct. at 536. The Court then admonished this court for not complying with its mandate: “The portion of the state court’s opinion concluding that the instruction in petitioner’s case was infirm ‘for the reasons addressed in Francis’ was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not.” 108 S. Ct. at 537. Since this court failed to address whether, as a matter of federal law, the petitioner’s conviction must stand in light of Francis, the Supreme Court analyzed the issue of the retroactivity of Francis v. Franklin to foreclose any further analysis by this court. The Court held that Francis v. Franklin was merely a reaffirmation of its holding in the 1979 Sandstrom opinion. In so holding, the Court rejected the retroactivity argument advanced by this court in Yates v. Aiken, 290 S.C. 231, 349 S.E. (2d) 84 (1986).
Without the retroactivity analysis to support this court’s denial of the habeas corpus petition, it is my belief that we now are compelled to grant the petitioner a new trial since we previously concluded that the instruction in petitioner’s case was constitutionally infirm under Francis v. Franklin. Since *222we have already considered the constitutional claim on its merits, and found the charge to be violative of Francis, we have “a duty to grant the relief that federal law requires” as instructed by the United States Supreme Court. 108 S. Ct. at 538. The Supreme Court underscored their directive to our court by remanding Yates “for further proceedings not inconsistent with this opinion.” 108 S. Ct. at 538.
This mandate from the United States Supreme Court does not, in my view, allow for the harmless error analysis which the majority now employs to deny the habeas corpus petition. Had the Supreme Court desired this court to engage in a harmless error analysis, I believe the Court would have so indicated in their most recent opinion. Indeed, this court recognized in Yates v. Aiken, 290 S.C. 231, 349 S.E. (2d) 84 (1986), in a footnote, that a violation of the principles enumerated in Francis v. Franklin was subject to a harmless error analysis. This court, despite the opportunity to do so, chose not to analyze the Franklin issue as harmless. The Supreme Court also refused to consider the harmless error analysis by not seizing on this court’s reference to Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. (2d) 460 (1986) in Yates v. Aiken, 290 S.C. 231, 349 S.E. (2d) 84 (1986). Instead, the Court reversed this court’s decision for failing to comply with their mandate, that is, to analyze the issue in light of Francis v. Franklin. The directive from the Supreme Court to this court to “grant the relief federal law requires” mandates that we grant the petition for habeas corpus relief.
Even assuming arguendo that the United States Supreme Court’s mandate did not preclude this court from analyzing Mr. Yates’ claim under Rose v. Clark, then, in my opinion, we are still obliged to afford Mr. Yates a new trial because the erroneous charge which created a mandatory presumption was not harmless beyond a reasonable doubt.
Importantly, Yates’ primary defense to the murder charge rested on the contention that he had withdrawn from the criminal enterprise when he left the store before Mrs. Wood entered, prior to Davis’ stabbing of Mrs. Wood. Because he had withdrawn, Yates contended that Davis’ malicious intent could not be imputed to him under “the hand of one, hand of all” doctrine. Although the judge charged the jury concerning the elements of withdrawal from an enterprise, he also *223erroneously charged that “malice is implied or presumed from the use of a deadly weapon.” The erroneous charge which implied intent from the possession of a deadly weapon countered the charge concerning withdrawal. Given an instruction that malice is presumed from the use of a deadly weapon in light of the fact that both Yates and Davis had deadly weapons, the jury easily could have focused on the deadly weapon Yates carried, a gun, instead of the weapon used by Davis, a knife. Merely possessing a gun, especially one which the jury knew Yates used to shoot Mr. Wood, would have been sufficient for the jury to conclude, by virtue of the erroneous instruction, that Yates had the requisite intent to murder. Despite the majority’s contention that one must look at the intent of the killer, not that of the accomplice, the judge failed to articulate that the jury must find the killer acted with malicious intent. Thus, the jury could have mistakenly inferred from the confusing instructions that the intent required in order to prove murder was that of Yates because he carried a gun. The unconstitutional instruction which allowed the jury to presume intent, I believe, would have eclipsed Yates’ defense of withdrawal, and prejudiced his right to a fair trial. Therefore, the erroneous instruction to the jury was not harmless beyond a reasonable doubt.
I would, therefore, grant the petition for habeas corpus and vacate Yates’ conviction, subject to the right of the State of South Carolina to retry Yates within a reasonable period of time. Any other decision on our part simply delays further a retrial, which I believe the United States Supreme Court has mandated.
Finney, J., concurs.