
    Richmond
    Earl Daughtery, also known as Earl Daughtry v. Commonwealth of Virginia.
    October 8, 1976.
    Record No. 760057.
    Present, All the Justices.
    
      J. Wayne Sprinkle (John S. Joannou, on brief), for plaintiff in error.
    
      Jim L. Chin, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
   Per Curiam.

This appeal, like Hodge v. Commonwealth, 217 Va. 338, 228 S.E.2d 692, (this day decided), challenges the defendant’s second degree murder conviction under the Due Process Clause of the Fourteenth Amendment as explicated in Mullaney v. Wilbur, 421 U.S. 684 (1975), and In re Winship, 397 U.S. 358 (1970). The challenged instruction here, Instruction D, was the equivalent of Instruction 17 in Hodge.

Since the law of Virginia and this instruction only required the defendant to produce some evidence contesting the presumed malice, and the ultimate burden of persuasion beyond a reasonable doubt remained with the Commonwealth, we find this claim to be without merit for the reasons set forth in Hodge.

Affirmed.  