dissenting:
In Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), the Supreme Court held that states may constitutionally require a defendant to affirmatively establish self-defense by a preponderance of the evidence as long as the government is required to prove all the elements of murder beyond a reasonable doubt. The majority attempts to evade this controlling precedent by distinguishing the Ohio statutory definition of aggravated murder involved in Martin from the definition of murder under South Carolina’s statute. The result reached by the majority is contrary to Martin and to precedent of our circuit. I therefore respectfully dissent.
I.
It has never been seriously questioned that the Constitution requires that the burden of proof be placed on the prosecution to establish guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-62, 90 S.Ct. 1068, 1071-72, 25 L.Ed.2d 368 (1970). The Supreme Court explicitly declared in Winship that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1072.
Another “long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant.” Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). But, unlike the reasonable doubt rule, there have been several challenges to the constitutionality of placing a burden on the defendant to prove certain affirmative defenses.
In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the Court addressed the question of whether due process was violated by a state statute which required a defendant pleading insanity to establish the defense beyond a reasonable doubt. The defendant, who was charged with murder in the first degree, argued that the statute required him to prove his innocence by disproving the elements of the crime charged. The Court acknowledged that the jury might have found the defendant mentally incapable of the premeditation and deliberation required to prove first degree murder or the intent essential to both first and second degree murder, but not legally insane. However, the Court concluded that the state was “required to prove beyond a reasonable doubt every element of the crime charged.” Id. at 794, 72 S.Ct. at 1005. Thus, despite some overlap of proof on the mental element essential to the offense and to the insanity defense, a state may constitutionally place the burden of proving the defense on a defendant.
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court addressed the constitutionality of a Maine law which required a defendant charged with murder to rebut a presumption of malice and prove that he acted “in the heat of passion on sudden provocation” in order to reduce a charge of murder to manslaughter.1 Two degrees of homicide existed under Maine law — murder and manslaughter. Murder was defined as the unlawful killing of a human being with malice aforethought, either express or implied, id. at 686 n. 3, 95 S.Ct. at 1883 n. 3 (quoting Me.Rev.Stat.Ann. tit. 17, § 2651 (1964)), and manslaughter as the unlawful killing of a human being “in the heat of passion, on sudden provocation, without express or implied malice aforethought,” id. (quoting Me.Rev.Stat.Ann. tit. 17, § 2551 (1964)). The jury had been instructed, in accordance with Maine law, “that if the prosecution *615established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” Mullaney, 421 U.S. at 686, 95 S.Ct. at 1883 (footnote omitted). The Court held that this instruction violated the due process mandate of Winship that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.
After Mullaney there was considerable doubt as to the constitutionality of requiring a defendant to prove any affirmative defense, except insanity,2 because many urged, as did the defendant in Patterson, that:
[T]he State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.
Patterson v. New York, 432 U.S. at 214, 97 S.Ct. at 2329 (footnote omitted). However, the Court rejected this interpretation and subsequently clarified the holding: “Mulla-ney ... held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.” Id. at 215, 97 S.Ct. at 2329.
The Court squarely held that Mullaney should be classified as a presumption case, and therefore it offers little, if any, guidance on the issue of affirmative defenses. In Mullaney, as in other presumption cases, the state is improperly relieved of the burden of proving an essential element of the crime charged, and the burden is unconstitutionally shifted to the defendant to disprove the element. See, e.g., Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). However, in affirmative defense cases, as here and in Martin, the state bears the burden of proving every element of the crime charged, but the defendant is required to prove a separate issue which may or may not overlap with proof of the crime.
In Patterson, the Court faced the issue of the constitutionality of requiring a defendant charged with second-degree murder under New York law to prove the affirmative defense of extreme emotional disturbance. As in Maine, the state of New York made a distinction between murder and manslaughter. Second-degree murder required proof that the defendant intentionally killed another person. Patterson, 432 U.S. at 198 n. 2, 97 S.Ct. at 2321 n. 2 (quoting N.Y. Penal Law § 125.25 (McKinney 1975)). Manslaughter was defined as the intentional killing of another person “under circumstances which do not constitute murder because [the defendant] acts under the influence of extreme emotional disturbance.” Id. (quoting N.Y. Penal Law § 125.20(2) (McKinney 1975)). Consistent with New York law the jury was instructed that the defendant had to prove his affirmative defense by a preponderance of the evidence. The Court held that the defense was constitutionally adequate, finding that it was comparable to the insanity defense because “it constitutes a separate issue on which the defendant is required to carry the burden of persuasion.” Patterson, 432 U.S. at 207, 97 S.Ct. at 2325. The Court expressly stated:
We ... decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses.... Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense [of extreme emotional disturbance].
Id. at 210, 97 S.Ct. at 2327.
II.
More recently, in Martin v. Ohio the Court examined the same question raised *616here of whether due process is violated by placing upon a defendant, who is charged with murder, the requirement of proving self-defense as an affirmative defense.3 Martin argued, as does Smart, that placing the burden on her to prove the affirmative defense impermissibly required her to negate one of the elements of murder. The Court in Martin rejected this contention and we are compelled to do likewise here.
A.
Martin was convicted of the unlawful act of aggravated murder which is defined under Ohio law as “purposely, and with prior calculation and design, causpng] the death of another.” Ohio Rev.Ann. § 2903.01(A) (Anderson 1987). Smart was convicted of murder which is defined under South Carolina law as “the unlawful killing of another with malice aforethought, either express or implied,” State v. Johnson, 291 S.C. 127, 128, 352 S.E.2d 480, 481 (1987) (citing S.C. Code Ann. § 16-3-10 (Law. Co-op.1976)), malice being further defined as the intentional doing of a wrongful act, without just cause or excuse. State v. Foster, 66 S.C. 469, 475, 45 S.E. 1, 4 (1903).
Martin asserted that she acted in self-defense which under Ohio law is an affirmative defense justifying and rendering lawful otherwise unlawful conduct. State v. Davis, 8 Ohio App.3d 205, 456 N.E.2d 1256, 1261 (1982); State v. Morris, 8 Ohio App.3d 12, 455 N.E.2d 1352, 1359 (1982). Similarly, Smart also asserted self-defense, a complete defense constituting an excuse or justification for murder under South Carolina law. State v. Martin, 216 S.C. 129, 133, 57 S.E.2d 55, 57 (1949). Pursuant to state law, the burden was placed on Martin to prove the following elements of self-defense by a preponderance of the evidence:
(1) [T]he defendant was not at fault in creating the situation giving rise to the argument;
(2) [T]he defendant had an honest belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force; and
(3) [T]he defendant must not have violated any duty to retreat or avoid danger.
Martin v. Ohio, 480 U.S. at 230, 107 S.Ct. at 1100, 94 L.Ed.2d at 272. Likewise, in accordance with the law of South Carolina at that time, the jury was instructed that Smart was required to prove four similar elements by a preponderance of the evidence:
(1) [H]e was without fault in bringing on the difficulty.
(2) [H]e actually believe[d] he was in imminent danger of losing his life or of sustaining serious bodily injury or that he actually was in such imminent danger of losing his life or of sustaining serious bodily injury.
(3) [I]f his defense is based upon his belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief, or if his defense is based upon his being in actual and imminent danger, that the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike a fatal blow to save himself from serious bodily harm, or losing his life.
(4) He had no other means of avoiding the danger of losing his life or sustaining serious bodily injury than to act as he did in the particular instance.
See State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984).4
*617The majority holds that due process was violated by placing the burden on Smart to prove self-defense because it amounts to legal justification or excuse which negates malice and consequently the absence of self-defense must be established by the state beyond a reasonable doubt. This reasoning is contrary to the analysis in Martin where the Court held that overlap of proof between elements of murder and self-defense was constitutionally permissible, and did not prohibit the state from placing the burden on the defendant to prove the defense. Rather, the critical focus was whether the jury instructions unconstitutionally relieved the state of its burden.
B.
In Martin, the Court recognized that self-defense requires proof of an honest belief of imminent danger of death or serious bodily harm and that generally evidence offered to support this element may negate a purposeful killing by prior calculation and design.5 As Justice Powell stated in his dissent: “Under Patterson, this conclusion should suggest that Ohio is precluded from shifting the burden as to self-defense.” Martin, 480 U.S. at 239, 107 S.Ct. at 1105, 94 L.Ed.2d at 278. However, the Court held that it was permissible to require Martin to prove self-defense because “Ohio does not shift to the defendant the burden of disproving any element of the state’s case.” Id. 480 U.S. at 234, 107 S.Ct. at 1102, 94 L.Ed.2d at 274.
The same must be said here since the cases are fundamentally indistinguishable. While the majority dwells on the fact that malice is defined under South Carolina law as acting wrongfully without justification or excuse and that self-defense constitutes justification and excuse, this preoccupation with semantics is unwarranted. I perceive little distinction between Ohio law which provides that unlawfulness is subsumed in the elements constituting murder and South Carolina law pursuant to which unlawfulness is an element of murder. Likewise, there is no fundamental difference between murder under Ohio and South Carolina law even though one expressly includes in its definition of murder the element of malice aforethought — intentional wrongful conduct without just cause or excuse — while another does not. For regardless of how a state may word the definition, a basic concept of criminal law is that a homicide does not constitute the crime of murder unless it is unjustified or unexcused. W. LaFave & A. Scott, Handbook on Criminal Law § 68 (1972).
C.
Whatever the merits of this “elemental” analysis, the majority of the Court in Mar*618tin did not rely solely on that point in upholding the placement of the burden on the defendant to prove the affirmative defense. 480 U.S. at 234, 107 S.Ct. at 1102, 94 L.Ed.2d at 275. Rather, more importantly, the Court stressed that while the jury was instructed that the defendant carried the burden of proving self-defense by a preponderance of the evidence, it was also instructed that the state was required to prove each element of aggravated murder beyond a reasonable doubt. The Court stated:
It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the state’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the state of its burden and plainly run afoul of Winship’s mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the state’s proof of the elements of the crime.
Id. 480 U.S. at 233-34, 107 S.Ct. at 1102, 94 L.Ed.2d at 274 (citations omitted). Justice Powell recognized this reasoning to be the crux of the Court’s holding when he articulated in his dissent: “The Court thus seem[ed] to conclude that as long as the jury is told that the state has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial.” Id. 480 U.S. at 239, 107 S.Ct. at 1105, 94 L.Ed.2d at 278.
Reading the jury instructions here as a whole, it is clear that the trial judge repeatedly instructed that the state bore the burden of proving each element of the offense charged beyond a reasonable doubt. And importantly, the jury was not restricted from considering the self-defense evidence “in deciding whether there was a reasonable doubt about the sufficiency of the state’s proof of the elements of the crime.” Id. 480 U.S. at 234, 107 S.Ct. at 1102, 94 L.Ed.2d at 274.
D.
In Martin the Court clearly rejected the argument espoused by the majority that simply because one may assert that the particular definition of murder in question can be read as overlapping with the elements of self-defense, then the affirmative defense is necessarily unconstitutional. Justice Powell insisted that the clear implication of Patterson was that “when an affirmative defense does negate an element of the crime, the state may not shift the burden.” Id. 480 U.S. at 237, 107 S.Ct. at 1104, 94 L.Ed.2d at 277. But, whatever the merits of such a contention, the Court has clearly spoken and its result is binding on our decision today.
III.
Moreover, the majority ignores precedent of this circuit which has reiterated on several occasions the constitutionality of placing the burden of proving self-defense on a defendant and instead emphasizes the vacated panel decision in Griffin v. Martin, 785 F.2d 1172 (4th Cir.), reh’g en banc granted, 795 F.2d 22 (4th Cir.1986) (denial of habeas corpus relief affirmed by an equally divided court), cert. denied, 919 U.S. 480, 107 S.Ct. 1376, 94 L.Ed.2d 691 (1987), and the questionable applicability of Mullaney v. Wilbur.6
In Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), this court held that a jury charge similar to the one here was unconstitutionally contradictory and confusing. However, as the majority acknowledges, under Martin, the instruction would no longer be considered unclear and misleading. And, as Judge Hall discussed in his dissent in Thomas, 725 F.2d at 252-*61954, the court has previously upheld as constitutional, under South Carolina law, placement of the burden of proving the affirmative defense of self-defense on a defendant, Maxey v. Martin, 577 F.2d 735 (4th Cir.1978) (Table), as well as under Virginia law, Baker v. Muncy, 619 F.2d 327 (4th Cir.1980); Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 215, 58 L.Ed.2d 191 (1978).
IV.
Historically, the burden of proving all affirmative defenses — “indeed, ‘all circumstances of justification, excuse, or alleviation’ — rested on the defendant_ This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified.” Patterson, 432 U.S. at 202, 97 S.Ct. at 2322 (citations omitted); see also Martin, 480 U.S. at 235, 107 S.Ct. at 1103, 94 L.Ed.2d at 275. After the federal government assumed the burden of proving the sanity of a defendant, Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), many jurisdictions also undertook the burden of proving sanity and disproving other affirmative defenses, even though the ruling of Davis was not constitutionally grounded, Leland v. Oregon, 343 U.S. at 797, 72 S.Ct. at 1006. Prior to 1984 Ohio and South Carolina were the only two remaining states which placed the burden of proving self-defense on the defendant asserting it.7 And as the Court further noted, the question of the constitutionality of this practice should not be resolved “by cataloging the practices of other States.” 480 U.S. at 236, 107 S.Ct. at 1103, 94 L.Ed.2d at 276.
Notwithstanding the widespread changes in other states, the Court in Martin found that despite the overlap of proof of murder and self-defense, it was constitutionally permissible to place the burden of proving self-defense on the defendant as long as the state bore the ultimate burden of proving all the elements of murder beyond a reasonable doubt. In light of this clear holding, and the prior precedent of this circuit, Smart’s jury instructions plainly satisfied due process mandates. The issuance of the writ of habeas corpus should therefore be vacated.
. Although not technically an affirmative defense case, see infra, a discussion of Mullaney is essential to a proper understanding of the development of the law in this area.
. The Court reiterated the constitutional permissibility of placing the burden on defendants to prove insanity by dismissing the appeal in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976).
. The Court previously declined to address the issue in Hankerson v. North Carolina, 432 U.S. at 237 n. 3, 245, 97 S.Ct. at 2342 n. 3, 2346 and State v. Moran, No. 45879 (Ohio App. Oct. 27, 1983) [available on WESTLAW, 1983 WL 2712], cert. denied, 469 U.S. 948, 105 S.Ct. 350, 83 L.Ed.2d 285 (1984).
. In Davis, the South Carolina Supreme Court instructed the trial courts to proceed with a new instruction in self-defense cases. Davis, 282 S.C. at 46, 317 S.E.2d at 453. Although the instruction relieves the defendant of the burden of proving self-defense by a preponderance, the state supreme court rejected the defendant’s assertion in Davis that the affirmative defense unconstitutionally shifted the burden of proof as it previously existed. The court relied upon its previous holding in State v. Bolton that ”[n]owhere in Mullaney did the Court hold that requiring a defendant to prove self-defense affirmatively, denies him due process.” 266 S.C. *617444, 449, 223 S.E.2d 863, 866 (1976). In the interim between Bolton and Davis, the court on at least six occasions rejected arguments that the affirmative defense was unconstitutional. See State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982); State v. Griffin, 277 S.C. 193, 285 S.E.2d 631 (1981); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764 (1979); State v. McDowell, 272 S.C. 203, 249 S.E.2d 916 (1978); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977).
In State v. Glover, 284 S.C. 152, 326 S.E.2d 150, cert. denied, 471 U.S. 1068, 105 S.Ct. 2147, 85 L.Ed.2d 503 (1985), the court again reiterated the constitutionality of the affirmative defense. However, after emphasizing its disagreement with the holding in Thomas v. Leeke, 725 F.2d 246 (4th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984), see discussion infra, the court stated that it had "cured the purported constitutional violation complained oí by the Fourth Circuit,” and that "the charge approved in Davis shall be applied in all cases tried subsequent to the date of that decision, so long as contemporaneous objection was made at trial." Id. at 154, 326 S.E.2d at 151.
Finally, in State v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987), the court reversed a murder conviction for failure to comply with the Davis charge. The court refused to address the state’s contention that the charge was constitutionally adequate pursuant to Martin v. Ohio, instead finding that “it does not comport with South Carolina law.” Id. at 105, 359 S.E.2d at 65.
. More realistically, only in the rarest case will proof of an honest belief of imminent danger not negate prior calculation and design. Since the Court validated the Ohio scheme under which overlap of proof will exist in virtually all murder cases where self-defense is asserted, there is no logical reason why the South Carolina scheme should be invalidated because there will be overlap in every case where self-defense is asserted to a charge of murder.
. The majority in Martin elected not to cite the Mullaney decision, thereby implicitly questioning its applicability.
. In Martin, the Court noted that "all but two of the States, Ohio and South Carolina, have abandoned the common law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant.” 480 U.S. at 236, 107 S.Ct. at 1103, 94 L.Ed.2d at 275-76. At the time Martin was issued, South Carolina had also abandoned the common law rule. State v. Davis, 282 S.C. 45, 317 S.E.2d 452 (1984). See note 3.