(dissenting)—When the defendant in a first degree murder prosecution raises the issue of self-defense, the jury should be instructed that the State has the burden of proving absence of self-defense beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 496, 656 P.2d 1064 (1983).
Here, the jury was not instructed as to who had the burden of establishing self-defense. The majority concludes that the element instruction which required the State to prove the defendant unlawfully shot the victim was sufficient to cast the burden of proof on the State. I do not agree. Although one with legal training can trace this argument to its logical conclusion, I have serious doubt the instruction sufficiently advised the jury who had the burden of proof. The need for a specific instruction was discussed in McCullum, at pages 499-500:
Simply setting forth the elements of the crime without explanation of how self-defense relates to those elements may, itself, cause a jury some confusion as to where the burden of proof lies. Without a clear instruction on the subject, the potential for misinterpretation is simply too great.
The State's failure to properly instruct the jury who had the burden of proving absence of self-defense was fatal. The judgment of the Superior Court should be reversed and the case remanded for a new trial with proper jury *276instructions.
Reconsideration denied September 7, 1983.
Review denied by Supreme Court December 2, 1983.