DISSENTING OPINION
DeBruler, J.— Our statute, Ind. Code § 35-1-54-1, repealed effective October 1,1977, applicable here, defines second degree murder as follows:
“Whoever, purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree. . . .”
Inman contends on appeal that the trial court, over his objection, gave an erroneous instruction on the element of malice. Such challenged instruction stated:
“In law, the term malice includes ill will, hatred, anger, revenge and every unlawful, malevolent and wicked motive. An act done with wicked mind, and attended with such circumstances as plainly indicates a heart regardless of social duty and fatally bent on mischief, constitute malice within the meaning of the law. Hence, malice is implied from every wicked, willfull and deliberate act done by one person against another however, sudden, which shows an abandoned and wicked heart. While it is necessary, in order to sustain a charge of murder in either the first or second degree, to show the existence of malice, yet this does not mean that the prosecution must prove any special ill-will, hatred or grudge against the person who was assailed. Whenever it is shown that a homicide is unlawfully and purposely committed, with a deliberate intent, malice *139may be inferred in the absence of any explanations or extenuating circumstances.” (Emphasis added.)
Inman objected to the inclusion of the last sentence in the instruction contending that it was an incorrect statement of the law in that it implied that the accused must sustain a burden of proof.
It is elementary that malice is a mental state which is a separate, distinct, and essential statutory element of the crime of second degree murder. Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45; Horton v. State, (1976) 265 Ind. 393, 354 N.E.2d 242; Barnes v. State, (1975) 263 Ind. 320, 330 N.E.2d 743; Turner v. State, (1972) 258 Ind. 627, 280 N.E.2d 621; Miller v. State, (1961) 242 Ind. 678, 181 N.E.2d 633; Landreth v. State, (1929) 201 Ind. 691, 171 N.E. 192. The burden is upon the State to prove to the satisfaction of the jury beyond a reasonable doubt that the killing was done maliciously. Such a burden cannot be shifted or diminished. Miller v. State, (1977) 266 Ind. 461, 364 N.E.2d 129; Noelke v. State, (1938) 214 Ind. 427, 15 N.E.2d 950; Fehlman v. State, (1927) 199 Ind. 746, 161 N.E. 8. Satisfaction of this burden occurs when the State establishes facts and reasonable inferences therefrom which show malice. The inference that malice existed cannot be permitted to rest upon the failure or weakness of the defense or the silence of the accused. United States v. Morley, (7th Cir. 1938) 99 F.2d 683.
It is evident upon reading this instruction that the last sentence thereof which is challenged by appellant sets this instruction apart from malice instructions previously considered by the Court in homicide cases. While instructions have been sanctioned which suggested to the jury that malice may be properly inferred from selected facts, acts and circumstances, none have invited the jury to base such an inference upon the absence of explanations. Inman relies upon Abel v. State, (1975) 165 Ind.App. 664, 333 N.E.2d 848, in which the Court of Appeals condemned an instruction which told the jury that an inference of guilt of theft or burglary may arise from the possession of stolen property shortly after it was stolen, “coupled with the absence of a satisfactory explanation.” While such case is supportive, it is not wholly satisfactory here because the rationale was not that such instruction impermissibly placed a burden upon the accused, but that it constituted a forbidden comment upon the accused’s failure to testify. However, the case of Arthur *140v. State, (1949) 227 Ind. 493, 86 N.E.2d 698, relied upon in that case in condemning a similarly defective instruction in an auto banditry case, states the principle relied upon by appellant in his objection to this instruction.
“Any instruction by the court... which would in any manner place the burden upon the appellant to prove his innocence, or force him to introduce evidence to create a reasonable doubt in the minds of the jurors, is erroneous. It is the affirmative duty of the State in criminal cases to prove the defendant’s guilt beyond a reasonable doubt, and this burden cannot be shifted at any time to the defendant.” 227 Ind. at 497.
Dedrick v. State, (1936) 210 Ind. 259, 2 N.E.2d 409; Dorak v. State, (1915) 183 Ind. 622, 109 N.E. 771; Trogdon v. State, (1892) 133 Ind. 1, 32 N.E. 725.
In Arthur, the instruction found defective blatantly informed the jury that if the State proved that the accused was found in exclusive possession of recently stolen goods, “the law imposes upon him the burden of accounting for his possession, and of showing that such possession was innocently acquired; and if he fails to do so . . . the presumption arises that he is the thief.” There is of course no such direct mandatory language in the instruction challenged by appellant Inman in this case.
In Parker v. State, (1894) 136 Ind. 284, 292, 35 N.E. 1105, a homicide case, a succeeding case to Doan v. State, (1866) 26 Ind. 495, relied upon by appellant, this Court applied this same principle against shifting the State’s burden in considering an alibi instruction which concluded with these statements:
“ ‘[A]nd the failure of either of the defendants to account for his whereabouts during all the time within which the offense might have been committed, is not of itself a circumstance tending to prove his guilt, but a failure of this character may be properly considered by you in connection with any other evidence in the case, tending to prove guilt, if you find that there is such.’ ” 136 Ind. at 291.
It is to be noted that the instruction did not mandate the jury to consider the failure to account, but merely offered it for consideration by the jury, and in this respect, the instruction is unlike the Arthur instruction. However, the Court went on to condemn this part of the instruction as erroneous, saying:
*141“In criminal cases, the entire burden is upon the State from the beginning, and the accused is not bound to explain anything, and his failure to do so can not be considered as a circumstance tending to prove his guilt.” 186 Ind. at 292.
The instruction before us, by reason of the inclusion of the challenged last sentence, would engender in the jury the belief that the explanation called for by it would be helpful to the defense side of the case, as its production would prevent the inference of malice from being made and would thereby be contrary to the need of the prosecution side of the case to prove malice and the guilt of the accused. Moreover, this instruction deals with malice which is a state of mind, and the jury would realize that the state of mind of the defendant is a fact peculiarly within his knowledge, and that a beneficial explanation thereof would be readily, conveniently and uniquely available to the defense side for use. In light of the fact that this instruction contemplated explanations helpful and most readily available to the defense, the conclusion emerges that this instruction by necessary implication informed the jury that if the defendant failed to offer an explanation of his state of mind at the time of the fatal shooting, as he did so fail to do in this case, then the avenue by reason of such failure was open to it to infer malice. This instruction therefor impermissibly placed part of the State’s burden of proof on the element of malice upon the defendant and was erroneous.
The judgment should be reversed with instructions to grant appellant a new trial.
NOTE — Reported at 383 N.E.2d 820.