concurring specially:
I agree that we must reverse this case, but differ in my reasons.
Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), compels the holding that the jury instruction impermis-sibly shifted the burden of proof of intent, vel non, to the petitioner. This is not to say that from a defendant’s actions a jury might not draw an inference of intent; it is just that the prosecutor cannot use a presumption against a defendant, presumed innocent, to foreclose the issue.
I would adopt what the district judge wrote on harmlessness but for one omission from the record. Intent does not appear to have been in issue. As Judge Owens noted, intention to kill does not suffice to prove the case. The State is required to prove “. . . deliberate intention to kill a human being without excuse, justification or mitigation.” The case apparently put to the jury for decision was whether or not excuse or justification was present. The erroneous instruction did not relate to that issue and did no harm to its proper resolution. I respectfully disagree with that part of the panel’s opinion, referring to the defense of self defense, which says, “. . . we cannot say that the unconstitutional presumption was not a contributing factor in the jury’s decision to resolve the dispute against petitioner.” The resolution of the self defense claim would be the same whether petitioner’s intent was to kill, wound or frighten.
Nothing appears before us to suggest that petitioner questioned the existence of intent to kill in claimed self defense. However, everything does not appear before us. Under unfortunate procedure then in use in Georgia1 the argument of defense counsel is not in the record. Summation is an important part of trial. It would be likely that petitioner’s attorney pointed out that the evidence was consistent with intent only to frighten the victim or to disable him from further aggression. No matter that such an argument might have failed, defendant was entitled to have it asserted. We cannot know. If it were asserted, it would have been, under the erroneous charge, faced with a presumption that it was invalid. So the error has not been shown harmless beyond a reasonable doubt.
Therefore, I concur.
. I am advised that counsel’s arguments in such cases are now recorded and made a part of the record.