concurring. In •writing for the majority, Justice Sweeney has stated the ratio decidendi for the court’s holding in State v. Robinson (1976), 47 Ohio. St. 2d 103. Although the dissenters herein contest the validity of. the court’s conclusion in that regard, the question is settled in Ohio unless the General Assembly re-amends the statutory law.
This concurrence stems from my fear that the opinion in Mullaney v. Wilbur (1975), 421 H. S. 684 (see Robinson supra, fn. 11), is not only subject to misinterpretation, but has in fact been misconstrued by a significant portion of our legal community.
The following is offered as being enlightening and as an encouragement to peruse the full text of the source opinion:
“We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond reasonable doubt every fact, constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has .required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of .the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond reasonable doubt all of the elements included in the definition of the offense of which the defendant, is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required;, and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
. “This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements' of the crimes now. defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. ‘ [I] t is not-.within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.’ McFar*105land v. American Sugar Refining Co., 241 U. S. 79, 86 (1916). The legislature cannot ‘ validly command that the finding of an indictment, or mere proof of the identity of the accused; should create a presumption of • the existence of all the. facts essential to guilt.’ Tot v. United States, 319 U. S. 463, 469 (1943). See also Speiser v. Randall, 357 U. S. 513, 523-525 (1958). Morrison v. California, 291 U. S. 82 (1934),. also makes the point with sufficient clarity.
“Long before Winship [In re Wmship, 397 U. S. 358, 364 (1970)], the universal rule in this country was that the prosecution must prove guilt beyond reasonable doubt.. At the same time, the long-accepted rule was that it was' constitutionally permissible tó provide that various affirmative'defenses were to be proved by the' defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution’s burden that a new constitutional rule was required. This was not .the-problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses—for whatever réasons—mean that those States who strike a different balance are in violation of the Constitution.
a #.# #
• “Mullaney’s holding, it is argued, is that the' State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond reasonable doubt. In our view, the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and á majority of the Court refused to so understand and apply Mullaney when Rivera [Rivera v. Delaware, 429 U. S. 877 (1976), 97 S. Ct. 226], was dismissed for want of a substantial federal question.
“Mullaney surely held that a State must prove, every ingredient of an offense beyond a reasonable, doubt, and *106that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof, of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
“It was unnecessary to go further in Mullaney. The Maine Supreme Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, ‘ suddenly, and without any, or without considerable, provocation.’ State v. Lafferty, supra [309 A. 2d 647 (1973)]. Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullamey we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in W inship. * * *” (Emphasis added.)
The above-quoted observations are from Patterson v. New York (1977), 45 U. S. L. W. 4708, 4711-13. An additional discussion of Mullaney appears m Hankerson v. North Carolina (1977), 45 U. S. L. W. 4717, 4720. Of particular interest is footnote number eight in Rankerson-.
“Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If. the validity of such burden-shifting presumptions was as well settled in *107the States that have them as respondent asserts, then it is unlikely that prior to Mullcmey many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g., Fed. Rule Crim. Proc. 30.” (Emphasis added.)
As I read these latest pronouncements from the, high court, nothing in the United States Constitution forbids the Ohio General Assembly’s reinstitution, by statutory enactment, of the common law which Robinson held was supplanted by R. C. 2901.05.
0 ’Neill, C. J., concurs in the foregoing concurring opinion.