Here we are presented with a principle of law revisited. Ronald Francis Smart was tried for murder in a state court of South Carolina and was convicted and sentenced to death. While the conviction was affirmed by the South Carolina Supreme Court, the death sentence was vacated. Resentencing led to two consecutive terms of life imprisonment. The crime for which Smart had been charged was causing death wrongfully without legal excuse or justification.
Smart in his defense pleaded self-defense and introduced sufficient evidence to put self-defense in issue.
The case resembles in some very similar respects the case of Griffin v. Martin, 785 F.2d 1172 (4th Cir.1986), rehearing en banc granted, 795 F.2d 22 (4th Cir.1986). The district court's denial of the writ of habeas corpus in that case, though the writ had been granted at the panel level, was affirmed by an equally divided vote of the Fourth Circuit, 795 F.2d 22 (4th Cir.1986) (the panel opinion having been vacated by the rehearing grant). A petition for certio-rari to the United States Supreme Court was denied, 480 U.S. 919, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987). Therefore, the panel decision in Griffin v. Martin has no *610precedential authority but may be referred to as an indication of what the law is wherever it is found to be persuasive. In Griffin v. Martin at the panel level the burden of finding the absence of self-defense beyond a reasonable doubt was placed on the prosecution.
Since the panel decision in Griffin v. Martin, there have been subsequent developments which bear quite directly on the issues presented in the present ease. The Supreme Court of the United States has announced its decision in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), and the Supreme Court of South Carolina has announced its decision in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987).
From Martin v. Ohio, we learn that, where all the ingredients of the crime are proven, and where the statute does not require rebuttal by the prosecution of self-defense, the self-defense is affirmative in nature and the burden by preponderance of the evidence may be placed on the defense. From State v. Bellamy, we learn that in South Carolina self-defense is no longer an affirmative defense. A defendant seeking to rely on self-defense need merely produce evidence which may cause a reasonable doubt in the minds of the jury as to the presence of that element. 293 S.C. at 105, 359 S.E.2d at 64-65. Thereupon self-defense enters the case, and the burden is assigned to the prosecution to prove absence of self-defense beyond a reasonable doubt. That new principle of South Carolina law, while it may contradict the earlier law on the subject, does not, of itself, render the old law unconstitutional. State v. Glover, 284 S.C. 152, 154, 326 S.E.2d 150, 151 (1985), cert. denied, 471 U.S. 1068, 105 S.Ct. 2147, 85 L.Ed.2d 503 (1985). The new law is applied to all cases tried subsequent to the date of State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). Glover, 284 S.C. at 154, 326 S.E.2d at 151. The instant case was tried in 1981, well before the 1984 decision in Davis.
The crucial question confronting us then is whether, in a South Carolina trial before 1984, an instruction which placed upon a defendant who had put self-defense in issue the burden to prove it by a preponderance of the evidence violated due process under the Federal Constitution. Under South Carolina law, an absence of self-defense is an essential element of the crime of murder where self-defense has been introduced into the case. In Smart’s case, he was tried under a statute making criminal “the killing of any person with malice aforethought, either express or implied.” S.C.Code Ann. § 16-3-10 (Law. Co-op. 1976). The South Carolina Supreme Court has long defined “malice” as the intentional doing of a wrongful act, without legal justification or excuse. State v. Foster, 66 S.C. 469, 476, 45 S.E. 1, 4 (1903) (emphasis supplied). Self-defense, if made out, would amount to legal justification or excuse. The act would not be wrongful. Consequently the absence of self-defense, for federal constitutional purposes, must, even in 1981 or prior years, have been established by the prosecution beyond a reasonable doubt1 for guilt of the crime to be established.
It is of utmost importance to realize that there are two different factors presented here for our consideration. One is known as the elements of the crime, the other is the burden of proof. In order to appreciate the difference between the two factors, it is necessary to understand the distinction between Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Mullaney v. Wilbur, the unanimous Supreme Court held unconstitutional Maine’s practice of presuming malice and requiring a defendant to prove by a preponderance of the evidence that he killed in a sudden heat of passion based on adequate provocation in order to reduce intentional homicide from murder to manslaughter. In Patterson, the Supreme Court upheld a New *611York statute allowing a defendant to mitigate a charge of murder to manslaughter if he could prove by a preponderance of the evidence that he acted under extreme emotional disturbance for which there was reasonable explanation or excuse. According to the Patterson Court, the distinction between Mullaney and Patterson is based on the fact that Maine law, under consideration in Mullaney, had specified “malice” as an essential ingredient of murder. Patterson, 432 U.S. at 212-16, 97 S.Ct. at 2328-30. The Patterson Court reasoned that in Maine malice, which the state had to prove beyond a reasonable doubt, encompassed the absence of sudden heat of passion based on adequate provocation. Id. at 216, 97 S.Ct. at 2330. On the other hand, the New York statute did not use the term “malice”; therefore, in New York the absence of extreme emotional disturbance was not part of the definition of murder. Justice White was careful at the outset of the majority opinion in Patterson to point out that in New York causing a person’s death with an intent to do so alone made out the crime of murder. “Malice aforethought is not an element of the crime.” Patterson, 432 U.S. at 198, 97 S.Ct. at 2320.2 Mullaney, therefore, was distinguished, but by no means overruled, in the Patterson case. See Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (citing Mullaney as good authority).
Moreover, up until the time (1967)3 when the statute in Patterson came into existence, extreme emotional disturbance was simply not relevant to the crime of murder. Its proof or the lack of it did not constitute an element of the crime. The New York legislature, in enacting the statute, provided something new of benefit to the defendant not present before. The legislature was free to make such terms as it wished so it could make extreme emotional disturbance something which the benefited defendant was required to prove as an affirmative defense. The legislature was free not to cast on the prosecution the entirely novel burden of demonstrating the absence of extreme emotional disturbance. Patterson, 432 U.S. at 207-08, 97 S.Ct. at 2325-26. In contrast, though Maine law placed the burden on the defendant of showing lack of malice, the presence of malice was traditionally an element of the crime of the murder in that state.4 By the same token, since time immemorial, malice or lack of self-defense has been an ingredient of the crime of murder in South Carolina.
In both Ohio and South Carolina, state law has placed the burden of proof of self-defense by a preponderance of evidence upon the defendant, and the South Carolina prosecutor rests his case on that aspect of the matter. However, insofar as elements of the crime are concerned, there is a vital distinction, namely, the applicable difference as to the elements of the crime in the laws of Ohio and South Carolina that sets apart Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), on the one hand, and the instant case of Smart v. Leeke, on the other.
In South Carolina, the killing, even if intentional, in and of itself does not constitute a crime, especially the crime of murder. In order to make out a crime, it is necessary to demonstrate the combined effect of killing with malice. Since lack of self-defense is one aspect of malice, once self-defense has entered the case through presentation by the defense of some relevant evidence, the failure to prove malice beyond a reasonable doubt is fatal from the prosecution’s point of view. Irrespective *612of the state law on the subject, under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as an element of the crime, malice must be proved by the prosecution beyond a reasonable doubt.
In Ohio things are different. The crime of murder, under state law, is made out by the prosecutor when he or she shows the causing of death purposely and with prior calculation and design. In Martin v. Ohio, the existence of those elements was not disputed by the defendant. The prosecutor in Ohio is not required as part of his casein-chief to demonstrate malice. Without the matter of malice being considered, the crime is established by the prosecution; the defendant has the burden, by a preponderance of evidence, of convincing the finder of fact that though he or she committed murder, it was excused because of self-defense. The dissenters in Patterson v. New York (Powell, Brennan, and Marshall, JJ.) and in Martin v. Ohio (Powell, Brennan, Marshall and Blackmun, JJ.) would not have even allowed the distinction the majorities made, but the important thing is that the distinction is here to be made. Self-defense negates an element of the crime of murder in South Carolina, whereas self-defense does not negate an element of the crime of murder in Ohio. The consequence is that, in the instant case, federal constitutional law casts the burden of proof beyond a reasonable doubt on the prosecution when the matter has become a factual one through introduction by the defense of some evidence of self-defense.
It is important not to confuse “elements of crime” with “burden of proof.” Even in South Carolina, there is one important limitation. The burden of proof is on the prosecution as to lack of self-defense. If the defendant has failed to supply any credible evidence whatsoever of self-defense, the case becomes one where there is simply no proof whatever, one way or the other, so that a burden of proof cannot come into question. In such a case, there is a presumption of malice. See State v. Rochester, 72 S.C. 194, 200-01, 51 S.E. 687, 687 (1905). The state in such a case is excused from proving absence of self-defense because that element has not entered the case in any way. However, if it is introduced through the production of credible evidence, the presumption of malice — being a true presumption — entirely disappears and the matter becomes one to be proved or disproved by evidence. See State v. Rochester, 72 S.C. at 200-01, 51 S.E. at 687. The teaching of In re Winship is that, when there is present an issue of proof which goes to an element of the crime, the burden of proof beyond a reasonable doubt must be assumed by the prosecution.
It was pointed out in Martin v. Ohio that, under Ohio law, the “unlawfulness” of the defendant’s actions related solely to the acts constituting the crime charged and not to the collateral question of whether there was or was not proper intent. 107 S.Ct. at 1103. However, in South Carolina, “wrongfulness” may relate to the defendant’s mens rea and may well have to be proven by the prosecution beyond a reasonable doubt. It is not, however, necessary to enter that tangled patch of forestry, inasmuch as the absence of “legal cause or excuse” clearly encompasses the absence of self-defense. See State v. Martin, 216 S.C. 129, 134, 57 S.E.2d 55, 57 (1949) (self-defense constitutes a legal excuse for the killing of another).5
Hence, as the jury here was unequivocally and repeatedly instructed that the burden of proving self-defense by a preponderance of the evidence remained throughout upon the defendant, the district court’s grant of a petition for a writ of habeas corpus, subject to prompt retrial, was proper and the issuance of the writ on that condition is affirmed.
It would perhaps have been tempting to rest decision simply on the fact that the instruction contained confusing elements stating on several occasions that the burden of proof beyond a reasonable doubt always rests on the prosecution and, with an equal degree of repetition, the opposite, that the burden as to self-defense is an *613affirmative one to be met by the defendant through production of a preponderance of the evidence.6 However, it is' not possible to rest comfortably on that ground, partly because Martin v. Ohio indicates that such an instruction could be clear enough not to mislead the jury. 107 S.Ct. at 1102 fn.**.
Moreover, there is no need to rest on that ground. On the basis of what has gone before in this opinion, the rationales of the Ohio case and the South Carolina case are clearly distinguishable. The South Carolina definition of the crime of murder includes language compelling the prosecution to prove malice (i.e., lack of self-defense). See Foster, 66 S.C. at 476, 45 S.E. at 4. The Ohio statutory definition contains no such requirement of repudiation of self-defense in its definition.7 Therefore, while Ohio law does not appear to violate due process, South Carolina law, when interpreted so as to place the burden of self-defense on a defendant, does.
The government argues, however, that, even if the jury charge in the instant case did not comport with the requirements of due process, the writ should not issue because the error was harmless. We disagree. In Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3107-09, 92 L.Ed.2d 460 (1986), the Supreme Court held that the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) was applicable to jury instructions that unconstitutionally shifted the burden of persuasion with regard to intent. Under Chapman, error is harmless if, beyond a reasonable doubt, it did not contribute to the verdict obtained. 386 U.S. at 24, 87 S.Ct. at 828.
In the instant case, the defendant was found guilty of the murders of two men, Hardy Baxley and Leldon Myers, but not guilty of the murders of two women. Each of the victims had died of gunshot wounds, though some of them also had suffered knife wounds. The government introduced evidence that three of the victims had “A” type blood; the other victim and the defendant had “O” type blood. Both “O” and “A” type blood were found on the defendant’s clothes when he was arrested. The defendant tried to flee from the police at the scene of the crime and escaped for a short period during the course of his trial. The taped conversations made shortly after the defendant’s arrest, and apparently while he was intoxicated, contained numerous inconsistent statements from the defendant ranging from an admission of killing all four victims to an admission of only killing the two men in self-defense. The defendant also stated that the two female victims were murdered by one.of the male victims. The government introduced testimony that someone had moved the male victims’ bodies after they were shot. The state also presented evidence tending to show that none of the victims had fired a pistol on the day of the killings.
The defendant, on the other hand, introduced the testimony of Dr. Wendell Sowell. Dr. Sowell reviewed the reports of gunshot residue tests which were conducted on the victims and concluded that they had either fired or the victims had been holding a pistol when it was fired since the last time they had washed their hands. The defense also noted that the pistols allegedly used in the killings were owned by the two male victims. One of the male victims previously had been convicted of the murder of a policeman in Barnwell, South Carolina. The other was on parole from a life sentence for safecracking. The defense also asserted that the sexual relationship between one of the male victims and the young female victim was a cause of repulsion and aggravation to the defendant. The Department of Social Services had investigated an earlier report of such an alleged misconduct but filed no charges.
Clearly, there is sufficient evidence to support, as well as refute, the defendant’s assertions of self-defense. In view of such *614evidence, it cannot be said beyond a reasonable doubt that the error in jury instructions did not contribute to the final verdict. Therefore, the error was not harmless.
The judgment of the district court is, 677 F.Supp. 414 (D.S.C.1987), accordingly,
AFFIRMED.
. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 691-704, 95 S.Ct. 1881, 1886-1892, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970).
. In South Carolina things are just the other way. As in Mullaney "malice aforethought is an essential and indispensable element of the crime of murder.” Patterson, 432 U.S. at 212-13, 97 S.Ct. at 2328-29.
. Patterson, 432 U.S. at 218, 97 S.Ct. at 2331.
. [M]alice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mulla-ney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.
Patterson, 432 U.S. at 216, 97 S.Ct. at 2330.
. "There also is no dispute that self-defense historically is one of the primary justifications for otherwise unlawful conduct.” Martin v. Ohio, 107 S.Ct. at 1107.
. See Thomas v. Leeke, 725 F.2d 246 (4th Cir.1984), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).
. In Martin, the defendant was convicted of having “purposely, and with prior calculation and design, caus[ed] the death of another." 107 S.Ct. at 1100, quoting Ohio Rev.Code Ann. § 2903.01.