concurring in the judgment only in case No. 76-1150 and dissenting in case No. 76-1318. The General Assembly has the power to enact laws which modify or abrogate' the common law. In re Estate of McWilson (1951), 155 Ohio St. 261. However, the intention to modify or abrogate the common law must be manifested by express language of the statute. Abrogation of the common law by implication is not permitted, Smith v. United Properties, Inc. (1965), 2 Ohio St. 2d 310.
The common-law rule in Ohio is that every person who has arrived at the age of accountability is presumed to be of sound mind and responsible for his acts until the opposite condition of the mind is proven. It has thus been held that this presumption of sanity exists until the defendant can establish the contrary by a preponderance of the evidence. Clark v. State (1843), 12 Ohio 483; Loeffner v. State (1858), 10 Ohio St. 598; Bergin v. State (1877), 31 Ohio St. 111; Kelch v. State (1896), 55 Ohio St. 146; State v. Austin (1905), 71 Ohio St. 317; State v. Johnson (1972), 31 Ohio St. 2d 106.
The majority’s decision continues to expound the statutory aberration of State v. Robinson (1976), 47 Ohio St. 2d 103, and indulges in the pernicious extension of that holding to the affirmative defense of insanity.
R. O. 2901.05 reads, in pertinent part:
“(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.”
A perusal of the preceding statutory language demonstrates no expressed intention to ehange the existing common law. Instead, the statute consistent with the common law imposes upon the defendant the burden of going forward with the affirmative defense. The General Assembly is a literate body, and, if they desired to abolish over 100 years of common law, they had only to explicitly and succinctly so state. Such' a statement is plainly absent from *111the wording of this statute. Moreover, the legislative background and history of R. C. 2901.05(A) is .suggestive that any attempt to abrogate this common-law rule did not survive in the final draft of the legislation.2
The majority’s decision judicially creates another element of the crime, which the prosecutor must prove beyond a reasonable doubt. In effect, the court not only has switched the burden of proof from the defendant to the prosecutor, but in the conversion increased the burden of proof from a “preponderance” to “beyond a reasonable doubt,” Application of this higher burden of proof to the nebulous concepts of sanity and insanity will create an unnecessary and impossible evidentiary problem for the prosecution.
The General Assembly possesses the power to-, abolish this .principle of common law, but that exercise of this power is not manifested by the express language- of R. C. 2901.05. Further, this exercise of judicial legislation by the majority is not mandated by the requirements of the Due-Process Clause of the Fourteenth Amendment to the United States Constitution. Patterson v. New York, 45 U. S. L. W. 4708. I must, therefore, respectfully dissent from this court’s decision in State v. Meyer and concur in the judgment only in State v. Humphries.
Comment, Affirmative Defenses in Ohio after Mullaney v. Wilbur, 36 Ohio St. L. J. 828 (1975), proposes that the legislature’s change of. language in. R. C.,2901.05(A) .from the committee’s proposal indicates, the retention of requiring the defendant to prove an affirmative defense' by a preponderance of the evidence,