dissenting. The majority opinion quotes the charge by the trial court and characterizes its language as erroneous under R. C. 2901.05(A), under State v. Robinson (1976), 47 Ohio St. 2d 103, and under State v. Meyer decided with State v. Humphries (1977), 51 Ohio St. 2d 95. This argument appears to construe the term “establish,” used in the quoted portion of the charge, as placing a burden of proof upon the defendant. I disagree.
The change from Ohio’s traditional rule that the defendant had the burden of proving self-defense by a pre*249ponderance of the evidence was recognized in State v. Robinson, supra, as having been dictated by R. C. 2901.05 (A).
Justice Stem in that opinion persuaded me that the legislative intent, as drawn from the evolution of that statute, was to place the burden beyond a reasonable doubt upon the state as to every element of the offense, to place upon the accused the burden of going forward with the evidence to establish an affirmative defense and further that only if the evidence adduced by the defendant to establish3 his defense when considered with all other evidence is sufficient to cast a reasonable doubt on the auction of his guilt should the defendant be acquitted.
In State v. Robinson, supra, at pages 112-113, Justice Stern quoted the following from State v. Millett (Me. 1971). 273 A. 2d 504, 508:
u * * * When such evidence is forthcoming the trial court must first, viewing that evidence in the light most favorable to the defendant, determine whether or not it is adequate to raise the self-defense issue, and, if believed, would under the legal tests applied to a claim of self-defense permit a reasonable doubt as to guilt, stemming from that claim, to arise. Having concluded as a matter of law that the self-defense issue is thus properly tendered, the trial court need only instruct the jury as to the elements of self-defense. He will have no occasion to spealc of burden of proof other than to explain the State’s burden of proving guilt beyond a reasonable doubt .’ ” (Emphasis added.)
This the trial court did in the instant cause. No charge was given upon burden of proof other than that the prosecution had the duty throughout the trial to prove its case beyond a reasonable doubt. The trial court did require the defendant to go forward with the evidence to establish an affirmative defense. The word establish as used in the trial court’s instruction is directly from the Techni*250cal Committee comments to the proposed Ohio Criminal Code as footnoted in State v. Robinson, supra.
The charge correctly required evidence of insanity which if believed showed the defendant to be unable to tell right from wrong or to cling to the right and avoid the wrong. The defendant, in furtherance of that objective, presented evidence designed to fulfill his obligation. The jury was not persuaded and no prejudicial error occurred by reason of the instructions relative to the issue of insanity.
I would affirm the conviction.
Celebrezze, J., concurs in the foregoing dissenting opinion.See footnote 10, State v. Robinson, supra, at page 110.