State v. McCoy , 17 Or. App. 155 ( 1974 )

SCHWAB, C. J.,

concurring.

While both the majority and the specially concurring opinion of Judge Tanzer reach the same result in the case at bar, I concur in the majority opinion because it places the burden of proof on the emotional disturbance issue, once it has been injected into the case by competent evidence, on the state.

I find no substantial evidence that the legislature as distinguished from the Criminal Law Revision Commission ever considered the burden-of-proof issue.

I discern from an amalgam of the murder statute, the manslaughter statute and the proceedings of the Criminal Law Revision Commission that the Commission, although it dropped the phrase “with malice” from its definition of murder, nevertheless intended that one of the essential elements of murder be an intent formed in “cool blood” rather than in the “heat of passion,” which latter condition it deemed it could more accurately describe as “extreme emotional disturbance.” It follows that the Commission would not have labeled “extreme emotional disturbance” as either a defense or an affirmative defense, because evidence which goes to an essential element of a crime by its very nature need not be labeled for the purpose of allocating the burden of proof. For example, we customarily describe alibi evidence as defense evidence, but alibi evidence is not the kind of evidence that the Commission or the legislature labeled as either a defense or an affirmative defense. Understandably so. Alibi evidence, if believed, negates an essential element of the criminal charge. Likewise, I believe the Commission’s judgment was that “extreme emotional disturbance” would negate that quality of intent necessary to the crime of murder. If I am correct, the murder statute might well have defined murder as an unlawful killing resulting from an intent “not formed as a result of extreme emotional disturbance.”