On authority of State v. Robinson (1976), 47 Ohio St. 2d 103, decided this day, we agree with the Court of Appeals that the trial court erred in instructing the jury that the defendant has the burden of proving by a preponderance of the evidence that he acted in self-defensoi
. The. other issue in the base relates to the admission over objection of certain testimony of a police officer. The prosecution contends that the testimony, which includes a statement made to the officer by a third person, is admissible as an exception to the hearsay rule, on the theory that the reply of the defendant was evasive or equivocal, and that such response may be introduced in evidence as an admission.
The legal principle involved is stated in McCormick on Evidence, at pages 651-52 (.2 Ed. 1972), as follows:
“If a-statement is made by another person in the .pre*121sence of a .párty to.the action, containing assertions of facts •which, if untrue, the party .would under all the circumstances naturally be expected' to deny, his failure to speak has traditionally been receivable against him as an admission. Whether the justification for receiving the evidence is the assumption that the party has intended to express his assent and thus has adopted the statement as his own, or.; the probable state of belief to be inferred from his conduct is probably unimportant.'- Since it is the failure tó deny that is significant, an equivocal or evasive response may similarly be. used against him on either theory, but if his' total response adds up to a clear-cut denial, this theory of implied admission is not properly available.” (Footnotes omitted.)
See, also, 4 Wigmore,'Evidence, Section 1071-72 (Chadbourne Rev. 1972)-; 3 Wharton’s Criminal Evidence (13 Ed.),. Section 701; Cf. Geiger v. State (1904), 70 Ohio St. 400, 71 N. E. 721.
. The officer testified that when he originally questioned: the defendant, the defendant stated that “the man reached into his pocket and pulled out a gun and was aiming it at him and he [the defendant] fired his first shot.” In a stenographic statement made the same day, the defendant stated that “ [w]hen the gentleman got the gun about head high or approximately neck high, I came' out with my gun, the .22 revolver.” Those statements were made on June .9.. On June 12, the defendant was questioned again and made a handwritten statement. The'testimony of’the officer, concerning that occasion is as follows
* ‘ Q. Go ahead and testify and tell us what happened.
■ “A. All right, sir. I asked Mr; Matthews, correction, I told Mr. Matthews that I had been told.’that’ when he shot the'man that the man did not have'a gun in his hand. Mr. Matthew's stated as hear as I can recall to be exact, Mr. Ron, what were you told. And, I said that .the man had a-, hand on the bar and a hand on the stool and was. just pro-ceeding to get up when you shot him and he stopped for a few minutes and did answer me and stated., that perhaps, *122that the witnesses who saw what had happened missed the fact that when the man’s hand was coining from the bar that it was about halfway between the bar and his pocket, when he pulled his gun and fired.
“Q. When who pulled whose gun?
' “A. Mr. Matthews pulled his gun and fired'. So, at this point, after he had written out this particular portion of his statement prior to this question that we have discussed, I asked Mr. Matthews why he had written that the man had his hand in his pocket and was coming out with something because it differéd from what I had talked with him about just prior to his writing this particular portion of this statement. And, he told me that for him to write out what we had talked about would hurt him too much, and at this point, I went back to the statement and told him that the" statement was not correct, and then asked him a question which was whether or no.t! the man had a gun out when he was shot or had a gun in his hand when he was shot, and Mr. Matthews then wrote, ‘Did you see his gun all the way out of his pocket before you fired.’ and answered it * * *.
a * # #
■ “A.- ‘No, not his gun, but his hand was halfway out of his pocket although I could not tell if it was a gun, a knife, a bottle, but it was something other than his hand.’1
Under these circumstances, the response of the defendant wás an-admission that, his previous statements were not correct and that even he himself could not clearly see that the victim had a gun in his hand, contrary to his prior accounts. It was also evasive and equivocating as to whether the victim’s hand had even reached his gun at the time defendant shot him. The officer’s hearsay statement was thus admissible under the principle stated, because the defendant’s response was in part evasive and equivocating, and in part an express admission of the statement. Finding no error in the trial court’s admittance of the officer’s testi*123mony,- we therefore reverse the Court, of Appeals as to that issue. : ", - . ■! , .
The judgment of the Court of Appeals is reversed .in part and affirmed in.part, and it is directed that the cause be remanded for a new trial.
Judgment reversed in.pari and affirmed in part.
■. O’Neill, C. J., Corrigan, Stern, W. ,Brown and P. Brown, JJ., concur. Herbert, J., concurs in the judgment of affirmance in part on the basis of the syllabus.in State v. Robinson (1976), 47 Ohio.St. 2d 103. Celebrezze, J., dissents in part:This quotation; is taken from the typewritten copy of the videotape transcript .of the proceedings, and differs slightly from the quotation in the opinion of the Court of Appeals.