The evidence consisted, in part, of a tape-recorded conversation between Smart and a law enforcement officer after his arrest. Smart also presented two additional defenses in the alternative, contending that the women were accidently killed during a fight between himself and the men or that a fourth man killed both the men and women

At different points during the entire charge, the trial court defined reasonable doubt as "a doubt that it is a substantial doubt"; "a doubt for which a person honestly seeking to find the truth can give reason"; "one where, in search of the truth, you can express reason for your decision"; and "not a weak or slight doubt, but a serious or strong and well-founded doubt as to the truth of the charge."

In Davis, the South Carolina Supreme Court instructed the trial courts to proceed with a new instruction in self-defense cases. Davis, 282 S.C. at 46, 317 S.E.2d at 453. Although the instruction relieves the defendant of the burden of proving self-defense by a preponderance of the evidence, the state supreme court rejected the defendant's assertion in Davis that the affirmative defense unconstitutionally shifted the burden of proof as it previously existed. Prior to Davis, the court on at least seven occasions rejected arguments that the affirmative defense was unconstitutional. See State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 (1979); State v. McDowell, 272 S.C. 203, 249 S.E.2d 916 (1978); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S. Ct. 273, 54 L. Ed. 2d 181 (1977); State v. Bolton, 266 S.C. 444, 223 S.E.2d 863 (1976)

In State v. Glover, 284 S.C. 152, 326 S.E.2d 150, cert. denied, 471 U.S. 1068, 105 S. Ct. 2147, 85 L. Ed. 2d 503 (1985), the court reiterated the constitutionality of the affirmative defense. However, after emphasizing its disagreement with the holding in Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984), see discussion infra, the court stated that it had "cured the purported constitutional violation complained of by the Fourth Circuit," and that "the charge approved in Davis shall be applied in all cases tried subsequent to the date of that decision, so long as contemporaneous objection was made at trial." Id. at 154, 326 S.E.2d at 151.

Finally, in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), the court reversed a murder conviction for failure to comply with the Davis charge. The court refused to address the state's contention that the charge was constitutionally adequate pursuant to Martin v. Ohio, instead finding that "it does not comport with South Carolina law." Id. at 105, 359 S.E.2d at 65.

Although not an affirmative defense case, see infra, a discussion of Mullaney is essential to a proper understanding of the development of the law in this area

The Court reiterated the constitutional permissibility of placing the burden on defendants to prove insanity by dismissing the appeal in Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976)

The majority in Martin elected not to cite the Mullaney decision, thereby implicitly questioning its applicability

The Court previously declined to address the issue in Hankerson v. North Carolina, 432 U.S. at 237 n. 3, 245, 97 S. Ct. at 2342 n. 3, 2346, and State v. Moran, No. 45879, 1983 WL 2712 (Ohio App. Oct. 27, 1983), cert. denied, 469 U.S. 948, 105 S. Ct. 350, 83 L. Ed. 2d 285 (1984)

Martin did not dispute that the government proved all the necessary elements of the crime charged, but sought to independently establish a self-defense justification. However, the Court did not rely on the absence of an overlap in those particular circumstances. Martin v. Ohio, 480 U.S. at 234, 107 S.Ct. at 1102

More realistically, only in the rarest case will proof of an honest belief of imminent danger not negate prior calculation and design. Since the Court validated the Ohio scheme under which overlap of proof will exist in virtually all murder cases where self-defense is asserted, there is no logical reason why the South Carolina scheme should be invalidated because there will be overlap in every case where self-defense is asserted to a charge of murder.

In Martin v. Ohio, the Court noted that "all but two of the States, Ohio and South Carolina, have abandoned the common law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant." 480 U.S. at 236, 107 S. Ct. at 1103. At the time Martin v. Ohio was issued, South Carolina had also abandoned the common law rule. State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). See note 1

The mistake made by the prosecutor and the en banc majority is understandable, but no less erroneous. The approach they adopt apparently is to say that, when someone is accused of murder, he or she may exercise a well-established and time-honored right to do nothing and put the prosecution to its proof. Such an approach in a self-defense case will almost always be forlorn, given the presumption of malice aforethought. Nevertheless, there may exist cases where evidence of self-defense creeps into the prosecution's case-in-chief or the evidence presented through inherent weakness or ambiguity may not constitute proof beyond a reasonable doubt. If the defendant chooses not to address the issue of self-defense when presenting his or her case, then the burden of proof beyond a reasonable doubt remains on the prosecution

The defendant's failure at the close of the prosecutor's case to secure a motion for a direction of acquittal means either that the evidence will support a finding of absence of self-defense beyond a reasonable doubt, or that, because of the presumption of malice aforethought, self-defense has not even entered the case. Nevertheless, the defendant then has the "second chance" of going forward, to quash the presumption of malice by an affirmative defense raising before the jury the self-defense issue. The prosecutor and the en banc majority would say that the defendant who asserts the proposition in court, not having succeeded in the first go-round, when the prosecution had to prove lack of self-defense beyond a reasonable doubt, may reasonably be assigned the burden of proof, here the burden of persuasion by a preponderance of the evidence.

That approach, superficially reasonable as it may sound, overlooks that in South Carolina, by whomever and whenever self-defense is raised, the issue is guilt or innocence, which remains one of fact committed to a jury's determination. When a defendant comes forward under the "affirmative defense," the court is still at an adjudicatory stage. All the essential elements of guilt are being adjudicated, and a court is simply not free to depart from a beyond-a-reasonable-doubt requirement assigned to the prosecutor to a preponderance of the evidence standard falling on the defendant.

All those considerations are outlined in In re Winship, 397 U.S. 358, 359, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970), which holds that, despite any attempt to treat a defense as affirmative or to reduce the prosecution's burden of persuasion from beyond a reasonable doubt to "merely" a preponderance of the evidence (id. at 360, 90 S. Ct. at 1070), such attempt must fail where at issue is "every fact necessary to constitute the crime for which he (the accused) is charged." Id. at 364, 90 S.Ct. at 1073. The existence of self-defense or absence thereof is certainly such an evidentiary fact. A jury resolution of that issue in the defendant's favor leads inexorably to an acquittal, a finding of "no crime." "[I]t is the duty of the Government to establish ... guilt beyond a reasonable doubt. This notion--basic in our law and rightly one of the boasts of a free society--is a requirement and a safeguard of due process of law in the historic, procedural content of 'due process.' " Id. at 362, 90 S.Ct. at 1071.

Those cases effected a sea change in the common law, including tracking statutory law, as it had developed over the centuries. While the common law had for hundreds of years accepted that self-defense was a vindication and thus, when it was present, self-defense precluded a finding of crime, it had been silent as to who, prosecutor or defendant, had the burden of proving the fact of self-defense or its absence. Courts had, therefore, not surprisingly found it permissible to place the burden of persuasion, at least by a preponderance, on the defendant

In re Winship changed all that, holding that, when an issue of fact going to guilt or innocence is present, while a burden of production, i.e., of going forward, can be placed on the defendant, all burden of persuasion must constitutionally rest with the prosecution.

Article Six, Clause 2 provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The United States Constitution is, at least, as manifestly supreme, if in conflict with state laws, as would be a conflicting federal statutory provision.

South Carolina might even have gone further than I feel it necessary to go with respect to whether self-defense is an affirmative defense. I merely limit the applicability and extent of the doctrine of self-defense as an affirmative defense. I do not seek to eliminate its very existence. South Carolina in an analogous area of the law does, as things turn out, do away with the doctrine entirely. A plea of alibi "had been ... long held" an affirmative defense. State v. Bealin, 201 S.C. 490, 509, 23 S.E.2d 746, 753-54 (1943). But, notwithstanding, in that case it was held:

that the so-called "affirmative defense" of alibi is not an affirmative defense at all. It is simply evidence adduced by the defendant to sustain his plea of not guilty; that he did not commit the crime for the reason that he was not at the scene of the crime at the time of the occurrence. The burden was upon the state to prove beyond a reasonable doubt that the defendant was present at the scene of the crime and actually committed it. If the defendant offers evidence which generates a reasonable doubt in the minds of the jury that he was at the scene of the crime ..., he should be acquitted.

Id. at 507, 23 S.E.2d at 753-54 (quoting State v. Des Champs, 134 S.C. 179, 181, 131 S.E. 420, 421 (1926)). Failure of the state to prove presence at the scene of the crime beyond a reasonable doubt is fatal to the prosecution's case where the "accused merely controverts the prosecutions' [sic] evidence" in an alibi case. Id. at 510, 23 S.E.2d at 755. See also State v. Schrock, 283 S.C. 129, 133, 322 S.E.2d 450, 452 (1984).

For essentially the same South Carolina law refusing to classify "accident" as an affirmative defense but, rather, assigning the burden of proof to the prosecution to prove knowledge beyond a reasonable doubt to show intent, see State v. Ferguson, 91 S.C. 235, 244, 74 S.E. 502, 505-06 (1912); State v. McDaniel, 68 S.C. 304, 317-18, 47 S.E. 384, 389 (1904).

Rochester states as follows:

But this presumption is not applicable where the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice as one of fact from the evidence. Presumptions of this class are intended as substitutes in the absence of direct proofs, and are, in their nature, indirect and constructive.

....

Where the circumstances preceding and attending an act of this character are full, as in the present case, the prisoner is entitled to the benefit of any doubt that may arise, and cannot be deprived of such benefit by any presumption of guilt arising by operation of law from the naked fact of the homicide....

Id. (quoting State v. Coleman, 6 S.C. 185, 186-87 (1875)).

Rochester continues:

There is no doubt whatever of the isolated proposition that the law presumes malice from the mere fact of homicide, but there are cases as made by the proof to which the rule is inapplicable. When all of the circumstances of the case are fully proved, there is no room for presumption. The question becomes one of fact for the jury, under the general principle that he who affirms must prove, and that every man is presumed innocent until the contrary appears....

Rochester, 72 S.C. at 201, 51 S.E. at 687 (quoting State v. Hopkins, 15 S.C. 153, 156-58 (1881)). See also State v. Henderson, 74 S.C. 477, 479, 55 S.E. 117, 118 (1906); McDaniel, 68 S.C. at 314, 47 S.E. at 387; State v. Jones, 29 S.C. 201, 235-36, 7 S.E. 296, 314 (1888) ("[W]hile the law does presume malice ... yet, when the facts attending the homicide are brought out, there is no room for the presumption, and the state must prove the malice from the facts and circumstances attending the homicide, without any aid from the artificial presumption. Of course, this, like all other facts, must be proved beyond a reasonable doubt, and not merely by the preponderance of the evidence.").

"Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt...." Patterson v. New York, 432 U.S. 197, 215, 97 S. Ct. 2319, 2329, 53 L. Ed. 2d 281 (1977)

See infra note 15 demonstrating that in South Carolina, malice is an essential ingredient of murder. See also Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820, 824 n. 5 (4th Cir.1982), where Judge Winter had this to say: "Self-defense is wholly inconsistent with malice" when malice is an element of murder.

"After reading the statutory definitions of both offenses [murder and manslaughter], the [Maine trial] court charged that 'malice aforethought is an essential and indispensable element of the crime of murder,' without which the homicide would be manslaughter." Mullaney v. Wilbur, 421 U.S. at 686, 95 S. Ct. at 1883. See Patterson v. New York, 432 U.S. at 212-213, 97 S.Ct. at 2328

Recasting the presumption as a permissible inference, once it has vanished, qua presumption, through the introduction by the defendant of some evidence, see State v. Peterson, 287 S.C. 244, 247, 335 S.E.2d 800, 802 (1985), does not significantly aid the prosecution in the present case, for an inference is still a factual matter, unlike a presumption, which is a rule of law, and, therefore, must, with all factual matters in the case, meet the proof-beyond-a-reasonable-doubt standard. Franklin, 471 U.S. at 318, 105 S.Ct. at 1973

Federal law of homicide, dealing with the killing of a federal agent, would reach the same result even while referring to self-defense as "an affirmative defense on which the defendant bears the burden of production .... [H]owever, once the defendant has met the burden of production, the government must satisfy the burden of persuasion and must negate self-defense beyond a reasonable doubt." United States v. Alvarez, 755 F.2d 830, 842 n. 12 (11th Cir.1985), cert. denied, 474 U.S. 905, 106 S. Ct. 274, 88 L. Ed. 2d 235 (1985) (emphasis supplied); cf. Frank v. United States, 42 F.2d 623 (9th Cir.1930)

See in this connection note 20, 421 U.S. at p. 695, 95 S.Ct. at p. 1888 and note 31 at pp. 702-03, 95 S.Ct. at pp. 1891-92 of Mullaney v. Wilbur for an exposition of the distinction between requiring the defendant to produce some probative evidence and casting on him the burden of persuading the factfinder

Judge Wilkinson has demonstrated why there was error in instructing that Smart bore the burden of proving by a preponderance the presence of self-defense (a burden of persuasion) in Davis v. Allsbrooks, 778 F.2d 168, 173 (4th Cir.1985):

A burden of production shift, however, does not affect that requirement in any way. The defendant need not meet any persuasion burden at all, but instead must only introduce some evidence to dissipate the presumption and require the state to prove the element of the crime beyond a reasonable doubt.

Indeed, as stated in the Annotation, Homicide: Modern Status of Rules as to Burden and Quantum of Proof to Show Self-Defense, 43 A.L.R. 3d 221, 225 (1972):

It is submitted that most, if not all, of the confusion in this area of the law could be eliminated if the term "burden of proof" were stricken from our legal vocabularies and replaced by two more precise terms, such as "burden of persuasion" and "burden of producing evidence."

"[T]he New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder." Patterson v. New York, 432 U.S. at 201, 97 S.Ct. at 2322

In Patterson v. New York, Justice White for the majority held that in New York causing a person's death with an intent to do so alone made out the crime of murder. Id. at 205, 97 S.Ct. at 2324. It was also opined that "[m]alice aforethought is not an element of the crime." Id. at 198, 97 S.Ct. at 2321

Maine's choice to make malice an element of the crime in Mullaney v. Wilbur, also made by South Carolina in Smart v. Leeke and, by contrast, New York's constructing its statute in Patterson v. New York not to make absence of extreme emotional disturbance for which there was reasonable explanation or excuse an element of the crime is the controlling consideration here. The United States Supreme Court has had this to say: "Our opinions suggest that the prosecution's constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime." Engle v. Isaac, 456 U.S. 107, 120, 102 S. Ct. 1558, 1567, 71 L. Ed. 2d 783 (1982). "The applicability of the reasonable-doubt standard ... has always been dependent on how a State defines the offense that is charged in any given case." Patterson v. New York, 432 U.S. at 211 n. 12, 97 S. Ct. at 2327 n. 12

Holloway v. McElroy, 632 F.2d 605, 624-25 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981):

The States, however, are not completely proscribed from modifying through their legislatures and courts their criminal laws to reflect changing notions and policies: they may, within substantive fairness limits whose boundaries are not yet precisely marked, redefine the elements of their criminal offenses. In so doing, they may wish to reallocate burdens of persuasion on those issues that they remove from the definition of the crime, thereby converting those issues from elements into matters of mitigation or enhancement. Yet the States must also adhere tightly to procedural due process requirements in order to protect adequately the substantive values with which they may not tamper--such as the rule that conviction may be had only when the essential elements included in the definition of the crime have been established to a high degree of accuracy. Mullaney and Patterson both articulate one variation on the procedural due process requirement that the Winship Court found necessary to protect this particular substantive value: despite a State's characterization of an issue as being an "affirmative defense," the State may not place the burden of persuasion on that issue upon the defendant if the truth of the "defense" would necessarily negate an essential element of the crime charged.

The assertion that placing the burden of proof as to lack of self-defense here on South Carolina will require every state, in every affirmative defense case, to prove the negative thus has the hollow ring of debased coinage.

In considering whether Mullaney v. Wilbur or Patterson v. New York afforded the basis for deciding a case concerning enhanced punishment for visible possession of a firearm, the Supreme Court of the United States in McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), rested its decision on the following:

Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence; it merely requires a minimum sentence of five years, which may be more or less than the minimum sentence that might otherwise have been imposed. And consistent with Winship, Mullaney, and Patterson, the Act "creates no presumption as to any essential fact and places no burden on the defendant"; it "in no way relieve[s] the prosecution of its burden of proving guilt." [Commonwealth v. Wright,] 508 Pa. , at 35, 494 A.2d , at 359 [ (1985) ].

Id. at 83, 106 S.Ct. at 2415.

But in Patterson we rejected the claim that whenever a State links the "severity of punishment" to "the presence or absence of an identified fact" the State must prove that fact beyond a reasonable doubt.

Id. at 84, 106 S.Ct. at 2416.

As the Supreme Court of Pennsylvania observed, the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statute, Sec. 9712(b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.

Id. at 85-86, 106 S.Ct. at 2416.

Nor does it relieve the prosecution of its burden of proving guilt; Sec. 9712 only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished.

Id. at 87, 106 S.Ct. at 2417.

Murder is taking the life of a fellow being with malice aforethought, either express or implied. State v. Foster, 66 S.C. 469, 471, 45 S.E. 1, 2 (1903). "Malice is an essential ingredient of murder." State v. Harvey, 220 S.C. 506, 514, 68 S.E.2d 409, 412 (1951). It is the intentional doing of a wrongful act without legal justification or excuse. Foster, 66 S.C. at 476, 45 S.E. at 4. Self-defense is legal justification or excuse. Id. at 470-71, 45 S.E. at 2. See also State v. Martin, 216 S.C. 129, 134, 57 S.E.2d 55, 57 (1949); State v. Judge, 208 S.C. 497, 506, 38 S.E.2d 715, 720 (1946); Ferguson, 91 S.C. at 241, 74 S.E. at 505

State v. Gaskins, 284 S.C. 105, 120-21, 326 S.E.2d 132, 141-42, cert. denied, 471 U.S. 1120, 105 S. Ct. 2368, 86 L. Ed. 2d 266 (1985):

Murder is defined by Sec. 16-3-10 Code of Laws (1976) as follows: "Murder is the killing of any person with malice aforethought, either express or implied." While malice is a necessary ingredient of murder, it is not relevant until and unless it be found the accused person did in fact wrongfully kill the victim.... If the unlawful killing is without malice, the offense is reduced to manslaughter under Sec. 16-3-50. If the unlawful killing is through criminal negligence, the offense is involuntary manslaughter under Sec. 16-3-60. If the killing is in self-defense, there is no crime.

(Emphasis supplied).

In speaking of self-defense the South Carolina Supreme Court stated "that was not any crime." Foster, 66 S.C. at 470, 45 S.E. at 2. That statement of South Carolina law conflicts with neither the federal Constitution nor a federal statute, so it must be given effect here. See also South Carolina statutory provisions recognizing that in that state self-defense is a right. South Carolina Code of Laws Secs. 16-23-410, 470. See State v. Brooks, 252 S.C. 504, 510, 167 S.E.2d 307, 310 (1969).

Since a killing and malice aforethought are the only two elements of a murder in South Carolina, unless presence on the scene (i.e., lack of alibi) or intention (i.e., absence of accident) in the killing is an implied but not explicitly stated element of the statutory offense and since the element of a killing is indisputably proven in Smart's case, the spotlight focuses on malice aforethought. Self-defense, establishing that there is no crime, and hence no malice aforethought, leads inescapably to the conclusion that malice aforethought in the guise of absence of self-defense must be proven. Otherwise, there simply can be no crime. As a factually contested matter, it is an element of the crime and the burden of proof beyond a reasonable doubt constitutionally must rest with the prosecution.

Mullaney v. Wilbur makes clear the following:

It has been suggested, State v. Wilbur, 278 A.2d, at 145 [ (Me.1971) ], that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.

Mullaney v. Wilbur, 421 U.S. at 701, 95 S.Ct. at 1891.

State v. Glover, 284 S.C. 152, 326 S.E.2d 150, cert. denied, 471 U.S. 1068, 105 S. Ct. 2147, 85 L. Ed. 2d 503 (1985); State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984)

Hence the presumption evaporates

Why, unless he had done so, was self-defense even mentioned, indeed so fully alluded to, in the trial court's jury instructions? The trial judge stated: "There has been presented in this case some evidence which is for you alone to evaluate upon the proposition of what is known as self-defense." He further said: "Upon review of the record the court finds that a reasonable juror could find that the petitioner killed Myers and Baxley in self-defense."

State v. Robinson, 47 Oh.St.2d 103, 112-13, 351 N.E.2d 88, 94-95 (1976) was decided at a time when, in Ohio, the burden of persuasion as to lack of self-defense was, by statute, assigned to the prosecution, i.e., there was a time when the law of South Carolina and the law of Ohio were in harmony with one another. The court had this to say:

The procedural steps to be taken by the trial court are well stated in State v. Millett, supra (273 A.2d at 508 [ (Me.1971) ]: " * * * When such evidence is forthcoming the trial court must first, viewing that evidence in the light most favorable to the defendant, determine whether or not it is adequate to raise the self-defense issue, and, if believed, would under the legal tests applied to a claim of self-defense permit a reasonable doubt as to guilt, stemming from that claim, to arise. Having concluded as a matter of law that the self-defense issue is thus properly tendered, the trial court need only instruct the jury as to the elements of self-defense. He will have no occasion to speak of burden of proof other than to explain the State's burden of proving guilt beyond a reasonable doubt. If the evidence adduced, so viewed, is legally insufficient to raise the issue, the trial court will have no occasion or obligation to instruct the jury on the elements essential to a valid claim of self-defense, but rather will remove the issue of self-defense from jury consideration."

(Emphasis supplied).

In the Ohio Court of Appeals of Franklin County, the lower court opinion had previously adopted a view which that case affirmed, State v. Robinson, 48 Ohio App. 2d 197, 209, 356 N.E.2d 725, 732 (1975). There was in that case a concurrence which made clear that:

Rather, the existence or nonexistence of self-defense bears a direct relationship to the existence or nonexistence of the required mental elements of the crime. Although Mullaney is factually distinguishable, I can find no logical justification for placing the burden of proving self-defense upon the defendant, if placing the burden of proving that he acted in the heat of passion on sudden provocation is unconstitutional.

There was, in Smart's case, clearly sufficient evidence produced to meet the burden of production, the burden of going forward as to self-defense. Smart had told authorities: "I killed everyone of the[m], but they asked for it. They tried to kill me, what difference does it make.... They shot at me and I shot back at them." He, as defendant, adduced testimony that a pistol used in commission of the murders had been held, and perhaps fired by someone else who was at the scene of the crime at the time of its occurrence and was in addition the owner of one of the pistols employed. The two other suspects for the murders for which Smart has been convicted were, in one case, a convicted murderer of a policeman, and in the other a parolee under a sentence for life for safecracking. That Smart was repelling a life-threatening attack was a not implausible, but by no means inevitable, conclusion that the jury might draw.

See Groesbeck v. Housewright, 657 F. Supp. 798, 803 (D.Nev.1987), affirmed without opinion, 844 F.2d 791 (9th Cir.1988) ("some evidence of self-defense"); Ybarra v. Wolff, 662 F. Supp. 44, 46 (D.Nev.1987) ("the burden shifting instruction was not harmless beyond a reasonable doubt.").

The same point was made in an earlier Sixth Circuit Court of Appeals case, White v. Arn, 788 F.2d 338 (6th Cir.1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 94 L. Ed. 2d 686 (1987), brought under the exact same Ohio aggravated murder statute. The defendant was acquitted of aggravated murder but was found guilty of the lesser included offense of murder, defined as purposely causing the death of another. Significantly again "malice" was not an element of the crime. Id. at 340. The case held that specific intent and actual death "are the only facts or elements the statute expressly requires the prosecution to establish in order to convict an accused of murder." Id. at 344. Obviously then malice is not an element of that Ohio crime. Accord State v. Davis, 8 Ohio App. 3d 205, 209, 456 N.E.2d 1256, 1261 (1982) ("The elements of murder and attempted murder are expressly delineated in R.C. 2903.2 and 2923.03. The absence of self-defense is not an element of those offenses."); cf. State v. Morris, 8 Ohio App. 3d 12, 13, 455 N.E.2d 1352, 1359 (1982) ("The crime of felonious assault does not include the absence of self-defense, as one of its elements.")

White v. Arn glancingly alludes to and rejects one argument of the defendant not raised in Martin v. Ohio. (There the defendant did not dispute, upon the proof of killing, intent, calculation and design, the existence of all the elements of the Ohio crime. Martin v. Ohio, 480 U.S. at 231, 107 S.Ct. at 1100-01.) The argument could have been made, but apparently was not made, that, even in the absence of the word "malice" in the explicitly spelled out Ohio statutory definition of the elements of the crime charged, self-defense is such a time-honored and all encompassing concept of mankind that it constitutionally must be inferred that absence of self-defense is present as one element contained in the charging statute by implication even if not explicitly spelled out or at least as an item the prosecution must prove beyond a reasonable doubt. "[I]n certain limited circumstances, Winship 's reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged." McMillan, 477 U.S. at 86, 106 S.Ct. at 2417. See supra note 4 for the South Carolina treatment of alibi and of accident making presence on the scene and intent instances where the burden of proof beyond a reasonable doubt is assigned to the prosecution though not alluded to in the statute. The argument need not be examined by us, however, for in South Carolina the statute, altogether unambiguously, makes "with malice aforethought" an element of the crime. A Michigan case dealing with second degree murder, which in that state is, as in South Carolina, killing with malice aforethought, defines the elements of the crime: "(1) that a death occurred, (2) that it was caused by the defendant, (3) that the killing was done with malice, and (4) without justification or excuse." People v. Porter, 169 Mich.App. 190, 192, 425 N.W.2d 514, 515, app. denied, 431 Mich. 883 (1988).

A relevant point in this connection is that, by merely redefining state law as to what facts constitute a crime so that they become factors bearing solely on the extent of punishment, a state may not escape the constitutional doctrine embodied in Mullaney v. Wilbur. See id., 421 U.S. at 698, 95 S. Ct. at 1889.

In other Ohio cases, second degree murder under the applicable Ohio statute was defined as purposeful and malicious killing. It differs, therefore, in a material and here significant way from the Ohio aggravated murder statute dealt with in Martin v. Ohio. The court assumed that it was constitutional error to place the burden of proof on an essential element of the offense on the defendant, "[s]ince proof of self-defense would clearly negate the malice element." However, the evidence of guilt was so substantial, so beyond a reasonable doubt, as to negative any possibility of actual prejudice, rendering the error harmless. Hooper v. Perini, 641 F.2d 445, 446 (6th Cir.), cert. denied, 454 U.S. 817, 102 S. Ct. 95, 70 L. Ed. 2d 86 (1981). Compare White v. Arn, 788 F.2d at 344, discussing the second degree murder crime: "malice is an essential element of murder in the second degree." Also compare Thomas v. Arn, 704 F.2d 865, 876 n. 13 (6th Cir.1983) in which the Sixth Circuit stated:

In Hooper v. Perini, 641 F.2d 445 (6th Cir.1981), we held that self-defense negates the malice element of Ohio's second degree murder offense. Here, however, the offense is aggravated assault, and conviction of that offense does not require proof of malice. United States v. Corrigan, 548 F.2d 879 (10th Cir.1977), cited by petitioner for the proposition that under federal law self-defense negates criminal intent, is also irrelevant. The issue here is whether under Ohio law self-defense negates an element of aggravated assault.

The earlier case of Carter v. Jago, 637 F.2d 449 (6th Cir.1980), cert. denied, 456 U.S. 980, 102 S. Ct. 2249, 72 L. Ed. 2d 856 (1982) superficially appears to cast doubt on whether the self-defense burden might not, in a second degree murder case, with propriety be allocated, in Ohio, to the defendant. However, on study, it is clear that by permissive inference from the facts, and not merely on the basis of a presumption, there was evidence to support a finding of malice beyond a reasonable doubt and that "the evidence including that offered with respect to Carter's defense of self-defense was insufficient to raise a reasonable doubt about his guilt as a murderer." Id. at 455-56. Any discussion of who had the burden of proof, since the prosecution met it beyond a reasonable doubt, is unpersuasive dictum.

Piling dictum on dictum, Nieb v. Jago, 695 F.2d 228 (6th Cir.1982), cert. denied, 463 U.S. 1210, 103 S. Ct. 3544, 77 L. Ed. 2d 1393 (1983), speaks glancingly and approvingly of Carter v. Jago 's obiter statements. There the defendant in a second degree murder case, was found guilty, but the reasons given to uphold the conviction are entirely different from what concerns us here: 1) substantive default through the failure to preserve for appeal or to show "cause" and "prejudice" under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) and 2) the establishment by the prosecution of malice beyond a reasonable doubt. The defendant otherwise had the right to challenge a suspect instruction attempting to assign the burden as to self-defense to him.

In White v. Arn, 788 F.2d at 345, the Sixth Circuit, speaking of Ohio law, stated: "The defense of self-defense 'admits the facts claimed by the prosecution to establish an offense but relies on the existence of a separate set of facts or circumstances which the law recognizes as an excuse....' " "[A]n affirmative defense does not negate an element of a crime; ... it indicates that an affirmative defense excuses punishment for a crime the elements of which have been established and admitted." Id. at 347. To similar effect see State v. Martin, 21 Ohio St. 3d 91, 94, 488 N.E.2d 166, 168 (1986), affirmed in Martin v. Ohio: "Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged"; "the defense of self-defense as a 'justification for admitted conduct' "; "admits the facts claimed by the prosecution"; "[t]he elements of the crime and the existence of self-defense are separate issues."

All elements of the offense having been proved beyond a reasonable doubt, the defendant is guilty and attention turns to a separate set of facts to fix the "severity of punishment," if any, which "only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished." McMillan, 477 U.S. at 87, 106 S. Ct. at 2417.

On the other hand, unless the absence of self-defense has been proved beyond a reasonable doubt, there simply in South Carolina is no crime, no guilt. Cf. supra note 16.

That distinction between South Carolina's "no crime" analysis of self-defense and Ohio's "guilty, but excused," placing the burden of persuasion on the defendant, is but Dostoyevsky's recognition that "Crime" and "Punishment" are not identical. They must differ, to give validity to Ohio's approach, for it is necessary, from Ohio's point of view, to eliminate self-defense or, more precisely, its lack as a factually disputed consideration which must be resolved to make out the crime, and, thereby, to avoid the otherwise constitutionally inevitable rule of In re Winship, which holds that, when the fact is essential to the crime of murder, the fact of malice, i.e., lack of self-defense must be established, beyond a reasonable doubt by the prosecution. Since the lack of self-defense is as an evidentiary matter, prerequisite to a finding of crime in South Carolina (where there is self-defense, a killing is no crime in South Carolina), the laws of the two states are in stark contrast with one another in a manner here decisive. Making a defendant in Ohio who succeeds in proving self-defense by a preponderance guilty, but excused from punishment, is the only way, linguistically, logically and constitutionally possible.

In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970): "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."

Relevance is found by the en banc majority in cases concerned with the defense of insanity and whether sanity (i.e., the antithesis of insanity) must be proven by the prosecution beyond a reasonable doubt. With all due respect, I fail to perceive their pertinence

Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895), according to Leland v. Oregon, 343 U.S. 790, 797, 72 S. Ct. 1002, 1006-07, 96 L. Ed. 1302 (1952), dealt with a rule applicable to federal prosecutions in a federal territory, not to a state trial. Davis was decided on common law principles that the burden of proof beyond a reasonable doubt rested on the prosecutor. The result obviously did not favor the position of the en banc majority in the present case. It is, however, furthermore entirely distinguishable as being an appeal altogether unconcerned with the Supremacy Clause or the Fourteenth Amendment to the Constitution.

In Leland v. Oregon, on appeal from an Oregon state court where the defendant had pleaded insanity and the burden to prove it was placed on him, "the prosecution was required to prove beyond a reasonable doubt every element of the crime." Id. at 794, 72 S.Ct. at 1005. The question of insanity vel non was not an element of the crime. Rather "[t]he jurors were to consider separately the issue of legal sanity per se--an issue set apart from the crime charged to be introduced by a special plea and decided by a special verdict." The proper verdict was "guilty but insane," not "not guilty by reason of insanity."

"The plea of not guilty by reason of insanity is unknown to Oregon procedure." State v. Wallace, 170 Or. 60, 117, 122, 131 P.2d 222, 244, 245 (1942). In South Carolina, the mental condition present to establish self-defense establishes uncontrovertibly the absence of any crime. State v. Wallace further states that in case settled insanity is found as a matter of fact "it will excuse crime committed under its promptings." Id. at 82, 131 P.2d at 231. To sum up the Oregon law, the highest court of that state has referred to its frequent statements that

"if excessive and long-continued use of intoxicants produces a mental condition of insanity, permanent or intermittent, which insane condition exists when an unlawful act is committed, such insane mental condition may be of a nature that would relieve the person so affected from the consequences of the act that would otherwise be criminal and punishable."

State v. Smith, 260 Or. 349, 352-53, 490 P.2d 1262, 1264 (1971) (quoting State v. Wallace, 170 Or. 60, 81, 131 P.2d 222, 230 (1942)). The insanity cases are, consequently, simply not on point.

The reasons are simply recapitulated in an encapsulated summary: Whenever in a criminal case a factual issue is presented by evidence going to whether the defendant is guilty vel non, the burden constitutionally rests on the prosecution to prove beyond a reasonable doubt that, as to that disputed fact, the accused is guilty. In South Carolina, if the matter of self-defense is factually presented, as here, the burden of production is met, so guilt or non-guilt is at issue. If there is some evidence of self-defense, and its absence when considered with the prosecution's countervailing evidence does not appear beyond a reasonable doubt, in South Carolina there is no crime. In contrast of controlling proportions, in Ohio the prosecution need not prove lack of self-defense to establish the crime of murder. The defendant in Ohio must prove self-defense to obtain excuse from punishment for the crime all the elements of which the prosecution has succeeded in proving. Self-defense in Ohio goes only to the appropriateness of punishment for the made-out crime. To most of us, especially, it would appear, in South Carolina, to be labelled a murderer--albeit an excused one--when one has been forced, in order to save one's own life, to repel with lethal consequences the onslaught of an attacker, is not acceptable

To kill in self-defense is simply not a crime in South Carolina. More modern Biblical scholarship appears to accept that "Thou shalt not kill," while perhaps more euphonious or poetical, is not so accurate a statement of the Commandment as "You shall not murder." Tanakh, A New Translation of the Holy Scriptures According to the Traditional Hebrew Text (1985), Exodus ch. 20, verse 13; The Holy Bible, New International Version (1978), Exodus ch. 20, verse 13. Where absence of self-defense is in reasonable doubt, there is no murder in South Carolina.

It frankly surprises me that South Carolina labors so mightily in the present case to promote an indefensible noncompliance with a tenet of constitutional law in order to avoid a retrial which will do no more than assure a trial which comports with due process, i.e., fundamental fairness, in stark contrast to the trial given to Smart, which does not. In gaining affirmance of the order granting him habeas corpus, he will not have won acquittal but will still be faced with a fairly conducted trial, which the prosecutor appears to feel confident he can win. As an appellate court, our function is not to usurp the jury's role to determine guilt or innocence. Ours is but to achieve fairness in criminal trials to the greatest possible extent. Saddling Smart with the burden of persuasion as to self-defense, he having produced some evidence thereof, was not merely unfair. It was unconstitutional.

To avoid the inevitable the en banc majority seeks to build on the sand surrounding the non-citation in Martin v. Ohio of Mullaney v. Wilbur. Yet the failure to cite stemmed from the fact that was the controlling distinction between the two cases. In Martin v. Ohio, malice (i.e., lack of self-defense) was not an element of the crime; in Smart v. Leeke it was. To cite Mullaney v. Wilbur might only aggravate confusion because it manifestly did not apply to Martin v. Ohio once the defendant there acknowledged that all elements of the crime were proven and malice was not one of them

Recent citations by the Supreme Court of Mullaney v. Wilbur postdating Martin v. Ohio attest that its continued vitality is unimpaired. See Hicks v. Feiock, 485 U.S. 624, 485, 108 S. Ct. 1423, 1433, 99 L. Ed. 2d 721 (1988); Yates v. Aiken, 484 U.S. 211, ---, 108 S. Ct. 534, 536, 98 L. Ed. 2d 546 (1988).

In the effort to explain away Mullaney v. Wilbur the en banc majority attempts simply to dismiss that case as "a presumption case" as though by that verbal gymnastic cabalistically a valid distinction has been made to appear. Yet, if Mullaney v. Wilbur refuses, on the basis of a presumption to allow a technique applying a substitute for proof when no evidence is forthcoming from the defendant or the prosecution on self-defense, how much more applicable is the case when the defendant produces some positive evidence--meets the burden of production--thereby engaging In re Winship 's requirement of "proof beyond a reasonable doubt of every fact necessary to constitute the crime ... charged."

Georgia has recognized the inevitable:

We recognize, of course, that our Criminal Code has designated self-defense as an "affirmative defense." Code Ann. Sec. 26-907. Constitutional rights, however, are not determined on the basis of such labels. Thus, while it has sometimes been said that the burden as to an affirmative defense is upon the defendant, we are persuaded by recent decisions of our Supreme Court that the only burden placed upon a defendant with respect to all affirmative defenses is the burden of production. This interpretation is consistent with the statutory definition of affirmative defense: "With respect to any affirmative defense authorized in this Title, unless the State's evidence raises the issue invoking the alleged defense, the defendant to raise the issue, must present evidence thereon ..." Code Ann. Sec. 26-401(a).

We conclude that in a murder prosecution, where the state's case contains no evidence of justification, the defendant has the burden of producing some evidence in order to create a factual issue as to self-defense. Once this is done, the state then has the burden of proving, beyond a reasonable doubt, unlawfulness or the absence of justification for the act. The instruction here deprived defendant of due process of law by erroneously placing upon him the burden of persuasion as to an essential element of the offense. Accordingly, defendant must be granted a new trial.

Johnson v. State, 137 Ga.App. 740, 745, 224 S.E.2d 859, 863 (1976), vacated, State v. Johnson, 237 Ga. 276, 227 S.E.2d 345 (1976) (emphasis in original).

The Johnson case was later reversed, on the ground that, while it was a correct statement of the law, it would not be applied retrospectively. Johnson v. State, 140 Ga.App. 343, 231 S.E.2d 75 (1976). Any such excuse on retrospective inapplicability grounds is not available in Smart's case since the federal constitutional rule announced in 1970 and 1975 by In re Winship and Mullaney v. Wilbur long antedated Smart's trial and conviction in 1981.

The South Carolina attempted approach here simply does outright violence to its own established rule that there is "no crime" when self-defense, as a matter of fact, is present. The absence of self-defense, also a factual matter, must be shown before there is a crime. It is thus an essential element

South Carolina seeks to argue an essential identity between itself and Ohio, but, in Ohio, without addressing self-defense or its absence, an Ohio prosecutor has succeeded in making out all the elements of the crime of murder. Self-defense as an affirmative defense does not, in Ohio, negative an element of the crime. With the elements of murder established and admitted in Ohio, whether punishment should be excused is the only remaining question to be addressed on the subject of self-defense. In South Carolina, things are radically different for there has been no crime in the first place.

Along the spectrum established by the function: 1) innocence, 2) vindication, 3) guiltlessness, 4) justification, 5) non-criminality, 6) crime, 7) guilt, 8) excused guilt, 9) punishment, 10) culpability and 11) blameworthiness, South Carolina stands at one end, Ohio at the other.

It is particularly instructive to pay heed to Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), where both the majority of the court and the four dissenters regarded it so self-evident as not even to merit discussion, in a case of murder where malice was an element of the crime, that in a habeas corpus proceeding the placing of the burden of persuasion on the defendant of proving self-defense or lack of malice had impermissibly offended Mullaney v. Wilbur

An understanding of the nature of "self-defense" and of "malice aforethought" is so essential to comprehension of what is here involved that the very discerning and thorough examination in the opinion in People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971) will repay study. The United States Supreme Court has cited the case with approval. Mullaney v. Wilbur, 421 U.S. at 695 n. 20, 95 S. Ct. at 1888 n. 20. In Morrin the court was confronted with and dealt exhaustively with the definitional aspects of both first and second degree murder, each of which required a showing of a homicide accompanied by malice aforethought. First degree additionally required proof of willfulness, deliberation and premeditation, which from the start were deemed insufficiently proven so the case deals with a crime essentially identical in its definition with the one in South Carolina. The definition derives its text in Michigan from the age-old common law [Berrier v. Egeler, 583 F.2d 515, 521 n. 1 (6th Cir.), cert. denied, 439 U.S. 955, 99 S. Ct. 354, 58 L. Ed. 2d 347 (1978) ] while the distilled substance of the common law is to be found in South Carolina Code of Laws Sec. 16-3-10. For both murder is killing with malice aforethought.

From the Morrin case are to be gleaned the following pertinent observations:

a) Morrin, 31 Mich.App. at 310, 187 N.W.2d at 438:

Homicide ... may be innocent or criminal. There are two categories of innocent homicide, ... justifiable homicide and excusable homicide.... Homicide is 'justifiable' if it is authorized (e.g., self-defense) or commanded (e.g., execution of a death sentence) by law.

b) Id. at 310-11, 187 N.W.2d at 438:

Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.

c) Id. at 314, 187 N.W.2d at 440: Malice aforethought "distinguished criminal from innocent homicide...."

d) Id. at 314 n. 17, 187 N.W.2d at 441 n. 17:

But, even where there is actual intent to kill and circumstances of mitigation are not present, malice aforethought is not present if the actor acted justifiably, e.g., self-defense. (Emphasis supplied)

e) Id. at 315 n. 19, 187 N.W.2d at 441 n. 19 (quoting Perkins on Criminal Law (2d ed.) at 49-51):

"Since this is a presumption [namely, of the presence of malice aforethought] in the true sense it merely places upon the defendant the burden of going forward with the evidence. It is rebuttable and may be overcome by evidence which throws a different light upon the situation or indicates exculpating or mitigating circumstances."

f) Id. at 317, 187 N.W.2d at 442-43:

Speaking of the presumption of innocence as a "golden thread" running through the common law, the Court [the British House of Lords] rejected a formulation that required the jurors to find a defendant guilty unless he discharged his burden of rebutting the presumption of malice.

g) Id. at 318, 187 N.W.2d at 443:

The Michigan Supreme Court recognized at an early date the importance of categorizing malice aforethought as a permissible inference rather than a presumption.

That permitted the reinvigoration--a resuscitation--of the presumption, which, itself, applied only in the case that evidence was totally absent and which totally evaporated on the production of some evidence of self-defense by the defendant, in a completely different guise, i.e., as a permissible inference. The permissible inference being an evidentiary matter merely became part of the bundle of facts to be proven by the prosecution beyond a reasonable doubt.

h) Id. at 320, 187 N.W.2d at 444:

The retention of "malice" in the law of murder is a constant source of trouble and confusion. The word has long been a highly technical "word of art" practically never used in its natural meaning and so ambiguous and indefinite that lawyers and judges themselves find difficulty in treading the mazes of its various meanings....

Citing Moreland, Law of Homicide, pp. 205, 206.

i) Id. at 320 n. 25, 187 N.W.2d at 444 n. 25:

[H]owever, again, the true issue would not be whether the actor was corrupt, malignant or depraved but whether he was justified in acting as he did in self-defense or whether it was an accident or there were circumstances of mitigation.

j) Id. at 323, 187 N.W.2d at 445-46:

Courts might well emphasize that juries can convict of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist. A judge could, for example, charge that the defendant is guilty of the crime of murder if the jurors find, beyond a reasonable doubt, that he killed the victim and that he actually intended to kill the victim ... unless ... the jurors have a reasonable doubt whether ... the defendant justifiably acted in self-defense.

k) Id. at 332 & n. 54, 187 N.W.2d at 451 & n. 54:

Morrin's exculpatory testimony, although disbelieved by the jury, was not substantive evidence of facts inconsistent with his account. ["The mere disbelief of a witness' testimony cannot serve to fill an evidentiary gap in the case; ...."] (quoting People v. Matthews, 17 Mich.App. 48, 53, 54 n. 5 [169 N.W.2d 138] (1969).

History still outweighs logic, as was observed in a famous, oft quoted aphorism of Justice Oliver Wendell Holmes. Between the thirteenth and sixteenth centuries in England, where the common law originated, self-defense became in law a justification for, a vindication of killing. Mullaney v. Wilbur, 421 U.S. at 692, 95 S.Ct. at 1886. Of course, the announcement of the principle that, on the proof of self-defense, there had been no crime did not address the question of where the burden of proof by persuasion--i.e., of self-defense or the lack thereof--lay, and many states, under the common law, continued to call upon the defendant to prove the affirmative, to assume the burden of persuasion.

In re Winship in 1970 changed all that. Any fact necessary to show that a crime had been committed was one that the prosecution had to prove beyond a reasonable doubt and the absence of self-defense, i.e., the presence of malice, was such an essential element of the crime of murder.

Martin v. Ohio presents the exceptional case, and thereby tests the rule. In Ohio, the statutory enactment, in 1974, wiped out the justification ("no crime") status in that state where the common law or a statute tracking it had theretofore applied for self-defense. Ohio Rev.Code Ann. Sec. 2903-02(A). See Shifting the Burden of Proving Self-Defense--With Analysis of Related Ohio Law, 11 Akron L.Rev. 717, 754 (1978). Self-defense in Ohio does not statutorily negate an element of the crime but only excuses punishment for a crime the elements of which have been established and admitted. In South Carolina, however, the statute merely tracks, but does not alter, the common law insofar as the elements of the crime of murder are concerned. State v. Judge, 208 S.C. 497, 505, 38 S.E.2d 715, 719 (1946) ("Section 1101 of the Code of 1942 defines murder in this language: 'Murder is the killing of any person with malice aforethought, either express or implied.' This definition in no wise affects the ingredients which are necessary to constitute murder, but leaves them exactly and in every particular as they stood at common law."). State v. Rector, 158 S.C. 212, 215, 155 S.E. 385, 386 (1930). The "no crime" status for the right of self-defense remains intact in South Carolina.

Thus Ohio's replacement, with a differing statute, of the common law makes the difference while South Carolina's statute, precisely because it does not depart from the common law, does not. In re Winship. The difference may not have been perceived in 1974, when the Ohio statute was passed, since even courts in common law states had sometimes made the affirmative defense of self-defense one all the way even through the burden of persuasion. But perception came with In re Winship and has been established in Martin v. Ohio 's holding. But South Carolina, in contradistinction to Ohio, was and is a different country, and, whether or not the wench is dead, South Carolina's law is at variance in the respect here at issue with Ohio's.

To illustrate the true nature of South Carolina's effort here--to show that its endeavor is to frustrate, to forestall, not to enforce the law--one need only appreciate the basic distinction between the law of murder in Ohio and the law in South Carolina. To make out murder in South Carolina, one must prove malice, an essential ingredient of the crime in that state. To the contrary, a prosecutor trying someone for murder in Ohio is not required to prove malice

The common law is the source of the definition of the law of murder in most states. It is killing (or homicide) with malice aforethought (or prepense) in some, no doubt most, states. E.g., In re Morrin does it for Michigan, relying directly on the common law. In South Carolina, a substantially identical definition of murder is provided by statute. At any rate, whatever the reason, forty-eight states and the federal government impose, in a case where self-defense is raised, the burden of persuasion beyond a reasonable doubt on the prosecution.

Some of those states may have done so for statutory or even common law reasons, and, if so, South Carolina is not bound to follow them, on those grounds. It need not give the same meaning in South Carolina to other states' common law or statutory provisions. See Martin v. Ohio, 480 U.S. at 236, 107 S.Ct. at 1103 ("that question is not answered by cataloguing the practices of other States").

But--and this is critical--some other states, particularly where a federal appeals court has ascertained the applicable law, have required prosecutors to meet the burden of persuasion for reasons of federal constitutional law, relying on the presence of malice as an essential ingredient of the crime of murder. I think it safe to say that where malice aforethought is an element of the crime of murder, as it is in the present case, but not in Ohio, and some evidence of self-defense has been adduced, as here, the burden of persuasion on self-defense cannot be allocated to the defendant. Rather, the burden of persuasion of the lack of self-defense must be assumed by the prosecution. We know of no case since Mullaney v. Wilbur was decided in 1975 which holds to the contrary. Just addressing federal courts of appeal, which have decided on federal constitutional grounds, there are the following cases which support our assertion: Wynn v. Mahoney, 600 F.2d 448 (4th Cir.1979), cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979); Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir.1982); Holloway v. McElroy, 632 F.2d 605 (5th Cir.1980); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S. Ct. 354, 58 L. Ed. 2d 347 (1978).

The advent of Martin v. Ohio has afforded no grounds for a different result. Groesbeck v. Housewright, 657 F. Supp. 798, 802 (D.Nev.1987), affirmed without opinion, 844 F.2d 791 (9th Cir.1988), decided after Martin v. Ohio, reached the result for which we contend, namely, that the burden of persuasion in a self-defense case where malice is an element of the crime remains on the prosecution ("In upholding the Ohio conviction, the [United States Supreme] Court merely stated that the state may shift the burden of proof on self-defense to the defendant, where that issue is not an element of the crime itself ") (emphasis supplied). Federal constitutional law correctly stated must be followed in all states, South Carolina included. That means the en banc panel majority has accepted that in the instant case it has held that South Carolina, where malice is an element of the crime, all by itself, is right and that no less than three federal circuits are unanimously wrong as a matter of federal constitutional law. The en banc majority has unceremoniously cast aside even respected Fourth Circuit authority. E.g., Guthrie v. Warden, Maryland Penitentiary, supra. That is, I submit, an error of egregious as well as of constitutional proportions. The error is amenable to correction only if the conflict of the circuits is addressed by the United States Supreme Court. That should be done, for Smart properly has a point to raise as to whether he should be forced to serve a life sentence, although he has been without justice foreclosed from a fair consideration by the jury of self-defense, which in South Carolina means that there has been no crime at all--no assessment of time to serve in prison. Even if he loses in a retrial on the merits, but has seen the burden of persuasion allocated to the prosecution, where it belongs, Smart will not be plagued by the thought that he was denied due process in the course of his incarceration.

The problem is by no means confined to Smart, for, despite the Supreme Court of South Carolina's grudging admission in 1984 that, thenceforth, under South Carolina law the burden of persuasion, where self-defense was raised by some evidence, would be on the prosecution, there are many South Carolina prisoners who have suffered conviction under a fatally flawed burden of persuasion instruction and are entitled to a grant of habeas corpus so that they may be tried fairly rather than unconstitutionally. The most obvious example is Griffin in Griffin v. Martin, 785 F.2d 1172 (4th Cir.1986), who there received a grant of habeas corpus subject to a prompt retrial, only to see that result evaporate through a grant of en banc rehearing and the judgment by an equally divided court affirming the district judge's denial of the writ. Griffin v. Martin, 795 F.2d 22, (4th Cir.), cert. denied, 480 U.S. 919, 107 S. Ct. 1376, 94 L. Ed. 2d 691 (1987). A number of South Carolina cases assigned to the defendant the burden of persuasion, though each one post-dates 1975, and hence is after the 1970 sweeping changes of In re Winship and the application of the In re Winship doctrines in 1975 by Mullaney v. Wilbur. See Griffin v. Martin, 785 F.2d 1172, 1185 (4th Cir.1986).

Some of the defendants convicted on the basis of a constitutionally incorrect charge--and denied writs of habeas corpus to correct the error--are probably still living and incarcerated. They should not be denied the right to a fair trial which has heretofore escaped them.

While round on the ends and "hi" in the middle, Ohio is not so tall as to justify the result of the en banc majority. It is pushed to that height here only incidentally, through the action of South Carolina in attempting by reliance on Martin v. Ohio, to exalt South Carolina law above the Constitution of the United States.

The en banc majority has held that there should be a remand to allow the district judge to investigate the appropriateness of the reasonable doubt definition in the charge given by the South Carolina judge who presided at Smart's trial. However, that approach only leads to more delay for Smart, who has not been properly convicted and deserves prompt retrial, a retrial which assigns the burden of persuasion to the prosecution, where it constitutionally belongs