dissenting:
I respectfully dissent to this decision. I believe the court’s instructions failed to provide the jury with a proper theory of appellant’s self-defense which is fundamental. Crossett v. State, 96 OkLCr. 209, 252 P.2d 150, 163 (1952). The court’s instructions were contradictory in that instruction number 10, stated appellant had a right to stand her ground, and then provided that she *336should use all reasonable means to avoid such danger before injuring her attacker. See, Neal v. State, 597 P.2d 334 (Okl.Cr. 1979), Scaggs v. State, 417 P.2d 331 (Okl.Cr. 1966), and Townley v. State, 355 P.2d 420 (Okl.Cr.1960), wherein these same instructions were criticized.
The court’s instruction number 11, caused the jury to assume that appellant was the aggressor contrary to all the testimony introduced by the State. The same instruction was criticized in Scaggs, supra, and Townley, supra. Likewise, the court’s instruction number 14, left the jury to speculate that appellant had a duty to raise a reasonable doubt to show the theory of self-defense. The rule in this jurisdiction is that once the self-defense is established it is the duty of the State to prove beyond a reasonable doubt that the appellant was not acting in self-defense. Instruction 14, misled the jury.
Instruction number 9, did not completely encompass all the provisions contained in 21 O.S.1981, § 733. The State admitted that appellant was an employee of Meda Lively, but the instruction omitted the second provision of the Statute, “Homicide is also justifiable when committed by any person in either of the following cases: ... 2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress .... ” The Oklahoma Jury Instructions Commission defined “mistress” as “female employer.”
The majority opinion passes over these assignments of error as having not been objected to. However, whenever the trial court’s instructions fail to state the defendant’s theory of defense, the error becomes fundamental and can be raised at anytime. I believe these complaints were properly placed before this Court and should be recognized.
Finally, I believe the State failed to prove malice aforethought as required by 21 O.S. 1981, § 701.7. The prosecution made it appear that just because appellant had in her possession a weapon that she took it to the scene only for the purpose of committing First Degree Murder. The theory of the State was just as consistent with appellant’s theory of self-defense, as it was with First Degree Murder. The State’s chief witness, Meda Lively, testified to the self-defense of appellant. But, the prosecutor lessened the testimony of his witness by persuasive argument following his theory alone. This Court held in Townley v. State, supra, that the fact that the defendant is armed unlawfully does not deprive him of the right to use the weapon in his necessary self-defense. There was absolutely no proof that appellant had bad feelings against the deceased. Proof did show that Meda Lively requested appellant to come to her house, because the victim was at her house, drunk and belligerent. Appellant did know of the propensities of the victim and therefore provided a means of self-defense. The fact that the shot was fired two and one half feet from the victim leads me to conclude that the act was done in self-defense. Therefore, I dissent to this decision.