dissenting. After reading the syllabus, opinion and judgment of the majority, it is readily apparent that a review of the Ohio rules for the construction of statutes is desiderate.
In the construction of statutes the purpose of the-court in every instance is to ascertain and give effect to the legislative intent. Carter v. Youngstown (1946), 146 Ohio St. 203. This court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged. Wachendorf v. Shaver (1948), 149 Ohio St. 231.
This court has no legislative authority and should not make its duty of expounding statutes a cloak for supplying something omitted from an Act by the General Assembly. There is- no authority under any rule of statutory construction to add to, enlarge, supply, expand, extend or improve the provisions'of á statute to meet a situation not provided for. State, ex rel. Foster v. Evatt (1944), 144 Ohio St. 65.
The- statute under scrutiny here, R. C. 2901.05, effective January 1, 1974, in'pertinent part, reads:
“ (A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused. ‘ ■
“(C) As used in this section, an ‘affirmative defense’ is either of the following:
“(2). -A defense involving an excúse or justification peculiarly within the knowledge- of the accused, on which he can fairly be required to adduce supporting evidence.”
This 'statute .merely reiterates the common-law principle which places upon the defendant the burden of going forward-with'an affirmative defense. The statute does not mention the degree of proof required for that affirmative defense, but the''-requirement of proof by a preponderance *117of the evidence, for such affirmative defense, has been the common law of Ohio for well over 100 years. Rather, the statute strengthens the defendant’s position, if he relies on a defense of excuse or justification peculiarly in his knowledge, by mandating that, under such defense, he can fairly be required to adduce supporting evidence. It must be borne in mind, also, that before a defendant in a homicide case can be required to establish self-defense by a preponderance of the evidence, the state must establish that the killing by him was an unlawful killing within the degree of the crime charged. Taylor v. State (1909), 12 C. C. (N. S.) 486, 21 C. D. 602.
The degree of proof for defense of self-defense necessary under Ohio common law was first established in 1871, in Silvus v. State, 22 Ohio St. 90. Thereafter, this doctrine of the common law was uniformly followed in all cases by Ohio courts, e. g., Weaver v. State (1874), 24 Ohio St. 584; Turner v. State (1891), 5 C. C. 537, 3 C. D. 263; Carr v. State (1900), 21 C. C. 43, 11 C. D. 353; State v. Sappienza (1911), 84 Ohio St. 63; State v. Vancak (1914), 90 Ohio St. 211; Szalkai v. State (1917), 96 Ohio St. 36; Long v. State (1923), 109 Ohio St. 77.
In State v. Seliskar (1973), 35 Ohio St. 2d 95, this court said :
“ £ “Self defense in Ohio * * * is regarded as affirmative defense,” ’ to be established £ “by preponderating evidence.” ’ State v. Johnson (1972), 31 Ohio St. 2d 106, 120. See State v. Poole (1973), 33 Ohio St. 2d 18.
i Í * # #
“ Inasmuch as self-defense is an affirmative defense requiring proof by a preponderance of the evidence, it is incumbent upon a defendant claiming self-defense to offer' evidence tending to establish that defense, including, if necessary, his own testimony. State v. Champion (1924), 109 Ohio St. 281. If a defendant cannot provide evidence on the issue of self-defense other than his .own testimony, then; in order to avail himself of the defense, he must testify. In such event, the choice is that of the defendant, *118and, once lie has decided to rely on self-defense and is required by the circumstances to testify in order to prove that, defense, he necessarily must waive his- constitutional right to remain.silent.” ,
The requirement .was reasserted in connection with affirmative defenses, in State v. Rogers (1975), 43 Ohio St. 2d 28, 33:
“The defense of using reasonable force, to .effect a citizen arrest necessarily involves an allegation of excuse or justification, and is, therefore, an affirmative defense (R. C.' 2901.05 [C] [2]) which.places the burden of going forward with the evidence upon the accused (R. C. 2901.-05[A]) to prove that issue by a preponderance of the evidence. See State v. Seliskar, supra (35 Ohio St. 2d 95).”
■ Finally, unwittingly or.' otherwise, the majority has. ignored a most pertinent rule of construction going to the heart of their thesis, namely, that: Statutes are to be read and construed in the light of and with reference to the rules and principles of common law in force at the time of their enactment, and in giving construction to a statute the General Assembly will not be presumed or held to have intended a repeal of the settled rules of common law unless the language employed by -it clearly expresses or imports such intention. State, ex rel. Morris, v. Sullivan (1909), 81 Ohio St. 79.
This majority opus suggésts a percussion march fantasy in which a ghost marches first, bearing the burden of proof to a regular drumbeat; then, nimbly pirouettes, with the newly discovered burden of persuasion, to the alternating notes of triangle and the glockenspiel;- and, finally-, marches past the reviewing stand in a serpentine glissade to the irregular, ■ mixed, cacophonous beat .of drums, cymbals and bélls, bearing the burden of confusion. The common law on the question before us is clear; the rules of construction-..are clear; the statute is clear; the eases are clear; let us strive here-for continuing clarity.
. : For the above reasons, I. dissent from the syllabus, opinion and judgment of the majority.