specially concurring,
in which FAY, Circuit Judge, joins:I concur in the judgment.
I concur in the special concurrence authored by Judge Fay and add these words.
In submitting this death penalty to the microscopic, and critical, examination currently practiced, the Supreme Court’s reasoned opinion in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) has been distorted to an unreasonable result.
Sandstrom is a narrow holding resolving a case unlike the one now before us. The trial judge in Sandstrom instructed the jury in these exact words:
The law presumes that a person intends the ordinary consequences of his voluntary acts.
He made no further reference to the subject.1 Although the instruction was probably designed to state that which Judge Fay correctly observes to be “... totally in accord with human behavior,” it inadvertently intruded into a critical area. Criminal intent was, in that case (as it is in this one), an element of the crime. The burden of proving it was on the state. Unless the instruction were restricted (which it was not), it could be construed as providing a presumption by which the state’s burden could be carried without proof.
The trial judge in the case we are reviewing did not so instruct the jury. Lest its members be led to believe that the presumption, “totally in accord with human behavior” in general, be extended to proof of a necessary element of the crime, he told the jurors, specifically and clearly,
A person will not be presumed to act with criminal intention ...” (emphasis added).
Perhaps I am not sufficiently sophisticated to find that a trial judge authorized a jury to presume criminal intent in an instruction which says that criminal intention will not be presumed, but I suggest that sophistry is no great virtue in our work.
APPENDIX2
Petition for Writ of Certiorari
Filed in Supreme Court Clerk’s office, September 12, 1978 by Counsel for Petitioner David Sandstrom.
THE COLLOQUY BETWEEN THE COURT AND PETITIONER’S ATTORNEY WITH RESPECT TO THE INSTRUCTION HERE AT ISSUE.
[Official Transcript pages 332 line 12 through 333 line 6].
THE COURT: The Court proposes to give Instruction No. 5, offered by the State as No. 3.
MR. BOGGS: Your Honor, I object to that instruction. I can cite to your Honor a number of cases, I believe they are all in the Federal Court or — I believe in the Federal Court, one in the 9th Circuit Court of Appeals that have disproved the use of this instruction. The holding has been that the instruction has the effect of shifting the burden of proof on the issue of intent to the defense and that is impermissible under the Federal Constitution, due process of law. Stating from the case of Mullaney vs. Wilbur the United States Supreme Court case, the 5th Circuit has categorically denounced and the 9th Circuit — and it was not reversible but nonetheless it was an error to use the instruction.
*1523My intern can give you those citations if you would like to see them.
THE COURT: You can given those to the Supreme Court. The objection is overruled.
INSTRUCTIONS GIVEN BY JUDGE BOYD
INSTRUCTION NO. 3
The defendant, David Sandstrom, is by information charged with the crime of deliberate homicide, a felony, in that on or about November 1, 1976, in Deer Lodge County, Montana, he purposely or knowingly caused the death of Annie Jessen by stabbing the said Annie Jessen in the back with a knife.
Before you may convict the defendant, David Sandstrom of the crime of deliberate homicide, a felony, you must be convinced beyond a reasonable doubt of the following elements of this crime:
1) That the defendant did cause the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana; and
2) That the defendant caused the death of Annie Jessen purposely or knowingly.
INSTRUCTION NO. 4
You are instructed the law presumes a person innocent until he is proved guilty, and this proof must be of a nature to satisfy your minds beyond a reasonable doubt of the guilt of the accused. The mere fact that an information has been filed, charging a person with a crime, does not in itself, raise a presumption of guilt.
The presumption of innocence has the weight and effect of evidence in the Defendant’s behalf, and this should continue until it is rebutted by competent evidence which displaces any reasonable doubt you might otherwise have of the Defendant’s guilt.
INSTRUCTION NO. 5
The law presumes that a person intends the ordinary consequences of his voluntary acts.
INSTRUCTION NO. 6
A Material element of every crime is a voluntary act, which includes an omission to perform a duty which the law imposes on the offender and which he is physically capable of performing.
INSTRUCTION NO. 7
“Knowingly” is defined as follows: A person acts knowingly with respect to conduct or to a circumstance described by a 'statute defining an offense when he is aware of his conduct or that the circumstances exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as “knowingly” or “with knowledge” have the same meaning.
INSTRUCTION NO. 8
“Purposely” is defined as follows: A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result.
INSTRUCTION NO. 9
Purpose and knowledge are manifested by the circumstances connected with the offense. Purposes and knowledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence.
INSTRUCTION NO. 10
A person who is in an intoxicated condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated condition may be taken into consideration in determining the existence of a mental state which is an element of the offense.
*1524INSTRUCTION NO. 11
“Mitigated deliberate homicide” is defined as follows: Criminal homicide constitutes mitigated deliberate homicide when a homicide which would otherwise be deliberate homicide is committed under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor's situation.
INSTRUCTION NO. 12
You are instructed that the defendant, David Sandstrom, has abandoned the defense of mental disease or defect and you may not acquit the defendant on that basis.
INSTRUCTION NO. 13
If you are convinced beyond a reasonable doubt that the defendant, David Sandstrom, caused the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana, but you are not convinced beyond a reasonable doubt that the defendant caused the death of Annie Jessen purposely or knowingly, then you should find the defendant guilty of mitigated deliberate homicide.
INSTRUCTION NO. 14
If you are not convinced beyond a reasonable doubt that the defendant, David Sandstrom, caused the death of Annie Jessen on November 1, 1976, in Deer Lodge County, Montana, purposely or knowingly, then you should find the defendant not guilty of deliberate homicide.
INSTRUCTION NO. 15
You are to draw no conclusions or inferences from the fact that the defendant has not testified in this case, and you are entitled to draw no conclusions or inferences as to his reason in that regard.
. An appendix to the Petition for Writ of Certiorari filed in the office of the Clerk of the Supreme Court set out the instructions given by Judge Boyd in the trial of Mr. Sandstrom, as well as the colloquy between the court and petitioner's attorney with respect to the instruction at issue in that case. The instructions and the colloquy are set out in an appendix to this dissent.
. These materials may be found at Appendix to Petition for Certiorari 34-37, Sandstrom v. Montana, No. 78-5384 (C.I.S. Microfische, Supreme Court Records and Briefs F.O. 78).