dissenting. I concur in the syllabus, but dissent from the judgment of the court.
The instruction that the defendant had the “obligation” of “going forward with sufficient evidence” to “convince” the jury that the affirmative defense was “valid” imposed on the defendant a greater burden of proof than the law requires. This was error, for the defendant’s only responsibility in respect to an affirmative defense is to produce evidence of a nature and quality sufficient to raise that defense. R. C. 2901.05(A). State v. Chase (1978), 55 Ohio St. 2d 237; State v. Humphries (1977), 51 Ohio St, 95, 364 N. E. 2d 1354; Slate v. Robinson (1976), 47 Ohio St. 2d 103, 351 N. E. 2d 88. If the instruction was erroneous in this regard, then the error requires reversal, for an instruction that imposes upon a criminal defendant a greater burden of proof than the law requires constitutes reversible error. State v. Chase, supra; State v. Hauser (1920), 101 Ohio St. 404, 407, 131 N. E. 66; Kelch v. State (1896), 55 Ohio St. 146, 45 N. E. 6.
In Kelch v. State, supra, the defendant, charged with first-degree murder, asserted the defense of insanity. As the law stood then, the defense of insanity required proof by a preponderance of the evidence. The trial judge gave a correct instruction to that effect, but he also said that the proof must “satisfy” the jury that the defendant was insane at the time the offense was committed. The court reversed the defendant’s conviction, holding that “[t]he quantum of evidence to establish insanity made necessary *256by this instruction is substantially greater than a preponderance.”
The word “convince” is at least as strong as the word “satisfy.” If the use of the word “satisfy” is erroneous in a case where the jury is required to convict unless the affirmative defense is established by a preponderance of the evidence, then surely the use of the word “convince” is erroneous where the jury is required to acquit if all the evidence as to an affirmative defense is such that the jury, upon consideration of that evidence, entertains a reasonable doubt of defendant’s guilt. In Kelch, the court reversed even though the trial judge had given both a correct and an incorrect instruction on the issue of the affirmative defense whereas in the present case, the only pertinent instruction was an incorrect one. I think Kelch controls, and requires reversal in the present ease. Therefore, I respectfully dissent from the judgment.
W. Brown, J., concurs the foregoing concurring and dissenting opinion.