concurring specially.
I concur in the opinion and judgment of the court. I would go further, however, because the jury was instructed that once the state proved that the defendant killed the deceased, the burden then shifted to the defendant to show facts or circumstances which would reduce the crime to a lower grade of homicide, namely voluntary manslaughter.
*394In Mullaney v. Wilbur, 421 U. S. 684 (95 SC 1881, 44 LE2d 598) (1975), the United States Supreme Court had before it the question of whether a state could require 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 the crime of murder to the crime of manslaughter. The Supreme Court held that due process requires the state to prove the defendant guilty of murder beyond a reasonable doubt, and it was error to charge the jury that the defendant would be guilty of murder unless he proved himself to be guilty of the crime of manslaughter.
In the case before us the jury was instructed that the burden was on the defendant to justify the act of killing or show facts and circumstances which would reduce the crime of murder to a lower grade of homicide. They were instructed that if the defendant did not show that the killing was justified or should be a lower grade of homicide, then he would be guilty of murder. The jury instructions in this case violate the Mullaney decision.
The state argues harmless error, urging that a charge on voluntary manslaughter was not called for by the evidence and pointing out that the state’s theory of the case was that the defendant was guilty of malice murder and the defendant’s theory was that he was guilty of nothing. This statement of the state’s theory undoubtedly is correct, but it overlooks the state’s evidence that the defendant denied the intent to kill and the deceased was still breathing when the defendant quit choking her, along with the defendant’s evidence that the deceased talked to him at that time. The evidence called for some instruction other than murder, the trial judge charged on voluntary manslaughter rather than involuntary manslaughter, and I cannot, under the circumstances, say that the charge was harmless error beyond a reasonable doubt.
I am authorized to state that Justice Ingram joins in this special concurrence.