1. In a criminal prosecution, due process requires the state to prove beyond a reasonable doubt every essential element of the crime charged.

2. Unlawfulness is an essential element of the offense of murder, as defined in Code § 26-1101.

3. Where a defendant charged with murder under Code § 26-1101 raises a claim of self-defense or legal justification, the state has the burden of proving beyond a reasonable doubt that the defendant acted in an unlawful manner and without justification.

SUBMITTED OCTOBER 8, 1975 — DECIDED JANUARY 27, 1976 — REHEARING DENIED FEBRUARY 17, 1976 — CERT. APPLIED FOR.

CLARK, Judge.

Does a defendant charged with murder under Code § 26-1101 have the burden of proving his claim of self-defense by a preponderance of the evidence? Or, must the state prove beyond a reasonable doubt the absence of justification when the accused presents evidence that he acted in self-defense? This issue is presented for determination in light of recent decisions by the United States Supreme Court concerning burdens of proof which are antagonistic to due process standards in criminal prosecutions.

On September 6, 1974, defendant fatally shot Freddy Smith following a series of altercations arising out of a minor traffic accident between these two persons. The indictment charged defendant with murder. At his jury trial defendant took the witness stand, and, while admitting the shooting, he asserted that he acted in self-defense. The jury found defendant guilty of the lesser offense of voluntary manslaughter. This appeal followed.

The trial judge instructed the jury in part as follows: "Now, justification by virtue of self-defense as a defense must be made to appear from the evidence, not beyond a reasonable doubt, but to a lesser extent — specifically, by the preponderance of the evidence. If justification by self-defense is shown by a preponderance of the evidence it would be the duty of the jury to find the defendant not guilty of either of the offenses which I have defined for you and to acquit the defendant." The court then instructed the jury as to the meaning of the preponderance of the evidence.

In criminal prosecutions the standard of proof beyond a reasonable doubt is now recognized as a constitutional requirement: "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." In re Winship, 397 U.S. 358, 364 ( 90 SC 1068, 25 L.Ed.2d 868). (Emphasis supplied.)

In the recently decided (June 9, 1975) case of Mullaney v. Wilbur, 421 U.S. 684 ( 95 SC 1881, 44 L.Ed.2d 508, 519), the Supreme Court articulated a somewhat expanded notion of this due process requirement: "Winship is concerned with substance rather than ... formalism. The rationale of that case requires an analysis that looks to the `operation and effect of the law as applied and enforced by the State,' [cit.], and to the interests of both the State and the defendant as affected by the allocation of the burden of proof."

In Mullaney the Supreme Court reviewed Maine's rule requiring a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. The court held, "that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." 44 L.Ed.2d 522. The court rejected the state's argument that the absence of the heat of passion on sudden provocation is not a "fact necessary to constitute the crime" of felonious homicide. The court stated, "This analysis fails to recognize that the criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor... By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Winship." 44 L.Ed.2d 519.

Under Mullaney and Winship, the allocation of the burden of persuasion as to a defense depends upon whether the absence of that defense is a "fact necessary to constitute the crime." While Mullaney rejects formalism and requires a pragmatic analysis that looks to the operation of the law, we must be ultimately guided by the substantive requirements of our penal statutes as they relate to the proffered defense.

The elements which constitute the crime of murder are defined in our Criminal Code as follows: "A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Code § 26-1101 (a). (Emphasis supplied.) It is apparent from a reading of our Code provision that unlawfulness is an essential element of the crime of murder. It follows that if self-defense or justification negates the critical element of unlawfulness, then the state, in order to meet its constitutional burden, would be required to prove the absence of justification beyond a reasonable doubt.

The provisions of Code § 26-902 provide that the use of force in defense of self is justified under certain circumstances. Where these circumstances are found to exist, no penal consequences attach and the actor's conduct is therefore lawful. See Hayes v. State, 11 Ga. App. 371 (1) ( 75 S.E. 523); Walters v. State, 90 Ga. App. 360, 365 ( 83 S.E.2d 48). We thus conclude that a finding of self-defense negates the essential element of unlawfulness within the meaning of our murder and manslaughter statutes. For the state to meet its required burden of proving the element of unlawfulness, it must therefore prove beyond a reasonable doubt the absence of justification.

A claim of self-defense asserts lawful conduct. But under the charge given, that justification must be shown by a preponderance of the evidence, a defendant could be convicted of murder where the evidence indicates that it is as likely as not that he acted in a lawful manner. This result does not comport with the due process requirement that every fact necessary to constitute the crime be proven beyond a reasonable doubt.

We recognize those decisions of the Supreme Court of Georgia which place the burden of persuasion, as well as the burden of producing evidence, upon a defendant asserting self-defense. See Hewell v. State, 232 Ga. 175, 176 (2) ( 205 S.E.2d 216); McClendon v. State, 231 Ga. 47 (2) ( 199 S.E.2d 904). These cases were decided, however, prior to the United States Supreme Court decision of Mullaney v. Wilbur, supra. In more recent State Supreme Court opinions concerning the burden of proof problem, the thrust of Mullaney is recognized and older authorities to the contrary are impliedly disapproved. For example, in Henderson v. State, 234 Ga. 827, 832 (3) ( 218 S.E.2d 612), the court cited Mullaney in ruling that an instruction that a defendant must prove self-defense beyond a reasonable doubt was impermissibly burden shifting.

Mullaney was given further recognition in Grace v. Hopper, 234 Ga. 669, 671 ( 217 S.E.2d 267), wherein the court stated, "These United States Supreme Court cases persuade us that in order to comport with due process the prosecution must carry the burden of proving all critical essential elements of the crime charged against a defendant." In Grace, Presiding Justice Undercofler, writing for three members of the court, determined that the prosecution need not prove, beyond a reasonable doubt, the sanity of a defendant. The basis of the conclusion was a finding that sanity is not an essential element of the offense charged.

Thus, the determination of whether the state or the defendant has the burden of persuasion with respect to a particular defense depends upon whether the truth of that defense negates an essential element of the crime charge. Utilizing this test, we are able to reconcile the seemingly irreconcilable decisions on this subject. Alibi, for example, asserts that the defendant was not present at the scene of the crime and negates the state's burden of proving that the defendant was the perpetrator of the offense. Accordingly, the burden of persuasion as to alibi rests on the state. See Patterson v. State, 233 Ga. 724 ( 213 S.E.2d 612). As to the defense of coercion (Code § 26-906) in a robbery prosecution our court split with three opinions in Moore v. State, 137 Ga. App. 735. The majority ruled that coercion necessarily negates the requisite criminal intent for that crime and that the burden of disproving coercion must therefore be placed upon the prosecution.

The defense of entrapment (Code § 26-905), however, is predominantly a deterrent device against wrongful police activity. Since entrapment does not negate any essential element of an offense, it is not constitutionally impermissible to place the burden of persuasion as to this defense on the defendant. State v. McNeill, 234 Ga. 696 ( 217 S.E.2d 281). Likewise, abandonment (Code § 26-1003), which gives a wrongdoer a chance to avoid the legal consequences of his act by abandoning his criminal task, does not involve an element of offense and the burden of proving this defense may properly be placed on the defendant. Cowart v. State, 136 Ga. App. 528 ( 221 S.E.2d 649); Gibbons v. State, 136 Ga. App. 609 ( 222 S.E.2d 55).

We recognize, of course, that our Criminal Code has designated self-defense as an "affirmative defense." Code Ann. § 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. § 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.

Defendant's remaining enumeration, contending that the court erred in instructing the jury as to voluntary manslaughter, is without merit, since there was evidence showing that defendant acted in the heat of passion and as a result of the deceased's serious provocation. See Banks v. State, 227 Ga. 578, 580 ( 182 S.E.2d 106).

Judgment reversed. Pannell, P. J., and Quillian, J., concur.