dissenting.
When Patterson’s case was before the New York Court of Appeals, Chief Judge Breitel cautioned in a concurring opinion:
“It would be an abuse of affirmative defenses, as it would be of presumptions. in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a by-product of such abuse *707might well be also to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.”
People v, Patterson, 39 NY2d 288, 305, 347 NE2d 898, 909 (1976), quoted in Patterson v. New York, 432 US 197, 211 n. 13, 97 S Ct 2319, 53 LEd2d 281, 291 n. 13 (1977). In the United States Supreme Court, Justice Powell, joined by Justices Brennan and Marshall, began his dissent with the warning that the Court “surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence.” Patterson, 432 US at 216. Today’s decision demonstrates the cogency of those warnings when a state court does not use sensitive and critical judgment in applying Patterson nor exercise its own responsibility for maintaining the state’s historic burden of proof in criminal prosecutions.
As far as fourteenth amendment due process goes, the Supreme Court’s opinion in Patterson may permit the majority’s reading in this case, though it does not compel it. Patterson, like Mullaney1 before it, dealt only with the mitigating effect of emotional disturbance on the guilt of an intentional killer, and it held that because New York law made intent alone sufficient for the crime of murder, the state could leave it to the defendant to show the mental condition that would reduce his guilt to manslaughter. It is important to note the two characteristics of the issue decided in Patterson. First, it dealt only with proof of a defendant’s state of mind at the time he intentionally committed an unlawful homicide as a factor in determining the extent of his culpability. This focus on defendant’s mental condition is emphasized by the lengthy attention the Court gave to its own prior decisions on proof of the defense of insanity, contrasting Davis v. United States, 160 US 469, 16 S Ct 353, 40 L Ed 499 (1895) (placing the burden on the prosecution to prove sanity) with Leland v. Oregon, 343 US 790, 72 S Ct 1002, 96 L Ed 1302 (1952) (holding that due process did not foreclose placing this burden on the defendant).2 432 US at 202-04, 206. Second, *708the Patterson opinion treated the issue as one concerning mitigation and the appropriate degree of punishment.
“[E]ven if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment.”
432 US at 207.3 In view of these two characteristics, that Patterson concerned degrees of a defendant’s accountability for an intentional homicide and that defendant’s mental state was seen as a mitigating fact, Patterson is far from holding that legislatures are wholly free to transfer burdens to prove facts on which a defendant’s guilt will actually depend by manipulating “elements” of the statutory definition of the crime. Yet this is exactly how the majority opinion in the present case chooses to apply Patterson.
The majority’s reading is invited by the shifting vocabulary of the United States Supreme Court’s statements that due process requires the prosecution to prove beyond a reasonable doubt the defendant’s “guilt,”4 of “every fact necessary to constitute the crime charged,”5 or “every ingredient of an offense,”6 or “the existence of every element of the offense.”7 “Every fact” connotes the *709occurrence of those events and circumstances, at the time of the alleged act and its consequences, that either do or do not add up to guilty conduct at that time. Proof of “guilt” similarly conveys the thought that the state must prove all events and circumstances on which defendant’s guilt depends. In contrast, the phrases “every ingredient” or “every element” in the “definition” of the offense focus attention on legal analysis rather than facts and thereby open the door to legislative manipulation.
Concern about this possibility was at the core of Justice Powell’s opinion for three dissenters:
“The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense.”
432 US at 223 (footnote omitted). The majority acknowledged this risk and expressed confidence that it would not happen. 432 US at 211 n. 12.
The question, therefore, is whether the affirmative defense to felony murder stated in ORS 163.115(3) (1979) merely deals with mitigation “affecting the degree of culpability or the severity of the punishment” or whether, in the words which the Court quoted from Judge Breitel, above, its effect is “to unhinge the procedural presumption of innocence” and “to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.”
ORS 163.115(3) (1979) is not concerned with gradations of culpability and mitigation of punishment.8 Nor is *710it confined to the issue of the mental state with which the defendant committed an intentional act. Rather, it deals with factual events of a crime leading to the death of a nonparticipant, with the circumstances under which a participant either is or is not guilty of murder. The first fact is whether the defendant was or was not the only participant in the crime. The second fact is whether he did or did not commit, verbally counsel, cause, or aid in the homicidal act. The third fact is whether defendant was or was not armed with a dangerous or deadly weapon. The fourth and fifth facts are whether he had “reasonable grounds to believe” that another participant was armed and intended to endanger someone’s life. In sum, if a death occurs in the course of a listed crime, an unarmed participant who neither counseled nor aided in the fatal act, or had reason to expect that another participant would commit it, has not committed a murder. But the statute would force a defendant to prove these facts. This both shifts the procedural burdens in the case and in effect forces the defendant to testify concerning the events of the “underlying crime” alleged by the prosecution.
The statute lists the facts negating felony murder cumulatively. In other words, the legislature has prescribed that one who participates in the fatal crime is a murderer if, but only if, he committed, or counseled, or assisted in the fatal act, or was armed, or had reason to believe that another participant was armed or intended to risk anyone’s death. If the jury believes one of these facts, defendant committed felony murder, otherwise not. Only one of the items listed in paragraphs (a) to (e) is a prerequisite to defendant’s guilt of murder, not all of them. But in my view, as long as at least one of the facts must have occurred to make the defendant a murderer, the state cannot constitutionally relieve itself of the burden to prove that fact.
Of course it is verbally possible to redefine any crime in broad, general terms with exculpatory exceptions, *711and then to argue that an individual is guilty of the broadly defined crime unless he proves the exculpatory circumstances. This is the kind of textual manipulation that is cautioned against by the Supreme Court and Judge Breitel in Patterson. But the statute’s words do not disguise the substance of the legislative determination that a criminal is a murderer only if he either did or had reason to believe one of the things listed in ORS 163.115(3) (1979) and there assigned to him to disprove. It is what he did or should have known at the time of the crime that made his crime murder or not under the statute. The shift of the burden of proving these facts is very different from the mitigation of the degree of culpability for intentional murder by reason of a defendant’s emotional state which was at issue in Patterson. Whatever words the majority may quote from the majority opinion in Patterson, its holding is not compelled by the holding in that case.
The glaring flaw in a premise that the state’s burden of proof extends only to those “elements” which it chooses to describe as such in defining a crime is that such a constitutional test provides no terminal point for the potential rearrangement of the burden of proof in criminal prosecutions. Whenever the state recognizes that some fact or circumstance is important to whether conduct truly is criminal but finds it awkward, troublesome, or expensive to produce evidence of that fact or circumstance, the state can simply shift to the defendant the burden to prove its nonexistence. By that test, a person found in possession of another’s property can be defined as a thief unless he proves that he did not take the property or receive it knowing that it was not his own. A person found trespassing on another’s premises can be defined to be a burglar unless he proves that he entered with consent or did not intend to commit a crime. In both examples the facts which are made an “affirmative defense” remain elements of the person’s guilt or innocence of theft or burglary at the time of the act; they are shifted only as elements of the legal definition of the crime in order to shift the burden of proof.
This court has taken a different view with respect to removing elements of a defendant’s guilt from jury trial. In State v. Quinn, 289 Or 727, 618 P2d 412 (1980) we *712invalidated a statute that took from the jury a fact necessary to make defendant’s act a capital murder and left it to be decided by the judge at sentencing. Only three weeks ago, in State v. Wedge, 293 Or 598, 652 P2d 773 (1982), we held that a robbery statute unconstitutionally omitted jury trial of the question whether defendant used a firearm. The requirement of proof beyond a reasonable doubt is a constitutional protection for one accused of a crime as much as trial of the facts by a jury. We are bound to maintain one as much as the other. But on the theory of the present decision, the state could define the crime of robbery so as to make the accused prove that he did not use a firearm rather than make the prosecution prove that he did.
In State v. Wedge, supra, the court drew the constitutional line between “the facts which constitute the crime . . . and those which characterize the defendant,” acknowledging that the distinction is not always simple. I agree that it is not simple. But even when exculpatory emotional or mental factors are excluded, as in Patterson, it is not unmanageable to draw a line short of shifting to a defendant the burden to prove objective events and circumstances external to himself.
It is sometimes argued that affirmative defenses are a desirable device because they offer lawmakers a way to ameliorate harsh general rules when they would be unwilling to do so unless the defendant has to prove the mitigating circumstances.9 The argument is not persuasive. First, the definition of substantive crimes generally is a matter of legislative choice, but constitutions guarantee the protections of such procedures as trial by jury and the state’s burden to prove guilt beyond a reasonable doubt without compelling the testimony of the accused. A legislature faced with the choice between making an element of guilt part of the state’s case or eliminating it altogether may or may not make the harsher choice. Perhaps the drafters of the revised criminal code would have kept the old, stringent rule of felony murder without the affirmative defense, perhaps they would have left it to the prosecution to prove at least one of the elements listed in ORS 163.115 *713(3)(a)-(e) (1979). Waves of more or less harsh penal policy come and go. The process by which the state applies its penal power to the individual, however, is not left to changing winds of policy. It goes to the essence of the relationship between the government and the individual in our system of law. Second, as acknowledged in Patterson, most states place the burden on the prosecution to disprove a defense offered by the accused. 432 US at 207 n. 10 and 211. This does not suggest that the burden is incompatible either with effective or with humane penal laws.
The majority sticks closely to parsing the majority opinion of the United States Supreme Court in Patterson v. New York. That Court, of course, only tells us the minimum below which the fourteenth amendment permits no state to fall. Fourteenth amendment due process is not necessarily correct process, but more often than not cases are briefed as if it were. Patterson quotes Justice Cardozo’s old definition under which the fourteenth amendment denies the states a criminal procedure only if “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 432 US at 202, quoting Snyder v. Massachusetts, 291 US 97, 105, 54 S Ct 330, 78 LEd 674 (1934). The force of that quotation may be judged by the fact that it was followed by listing trial by jury, indictments, the privilege against self-incrimination, and possibly confrontation and cross-examination as dispensable guarantees. 291 US at 105-106. In any event, if a procedure is “so rooted in the traditional conscience of our people as to be ranked as fundamental,” the people of Oregon do not need the fourteenth amendment to protect it. I take article I, section 33 of the Oregon Constitution to preserve such “unenumerated” rights as were of constitutional magnitude in 1859, that is to say, rights specifically against government and “so rooted as to be fundamental.”10
It seems likely that the right not to be convicted of crime except upon proof of guilt beyond a reasonable doubt *714was so recognized.11 But the question what if any affirmative defenses were recognized at that time has not been briefed, and, as the majority points out, defendant miscites the relevant constitutional clause. This is not the place, therefore, to pursue the difference between the federal and the state premises. In any event, in sustaining the shift of the burden of proof from the prosecution to the defense in this case, the majority is too eager to follow the words of Patterson beyond its holding.
The “presumption of innocence” and the prosecution’s burden to prove guilt beyond a reasonable doubt rank high among those distinctions that are commonly boasted to place our system of justice above those of supposedly less enlightened nations, including some in which a defendant perhaps may be haled before a court, confronted with some modicum of incriminating evidence, and invited to persuade the tribunal that he has not committed a crime. Under the view adopted by the majority in this case, if carried to its logical conclusion, those boasts can be relegated to Law Day editorials and the popular misconceptions of television crime programs. I therefore dissent.
Lent, C. J. joins in this dissenting opinion.
Mullaney v. Wilbur, 421 US 684, 95 S Ct 1881, 44 LEd2d 508 (1975).
The Court also cited Rivera v. Delaware, 429 US 877, 97 S Ct 226, 50 LEd2d 160 (1976) as reaffirming Leland.
The Court repeated the point:
“If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.” (footnote omitted).
Patterson, supra, 432 US at 209. This quotation was accompanied by a footnote reference to the American Law Institute’s Model Penal Code, which recommends placing the burden on the state to disprove so-called “affirmative defenses” of the kind here at issue, once the defendant has come forward with some evidence of the defense. ALI Model Penal Code § 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955).
In re Winship, 397 US 358, 362, 90 S Ct 1068, 25 LEd2d 368 (1970).
Mullaney, supra, n. 1, 421 US at 685.
Patterson, supra, 432 US at 215.
Jackson v. Virginia, 443 US 307, 316, 99 S Ct 2781, 61 LEd2d 560, 571 (1979).
ORS 163.115(3) (1979) (amended 1981):
“(3) It is an affirmative defense to a charge of violating paragraph (b) or (c) of subsection (1) of this section that the defendant:
“(a) Was not the only participant in the underlying crime; and
“(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof; and
“(c) Was not armed with a dangerous or deadly weapon; and
*710“(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and
“(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death.”
See, e.g., Judge Breitel’s further comments quoted in Patterson, supra, 432 US 211 n. 13.
Or Const, art I, § 33:
“This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.”
See, e.g., State v. Glass, 5 Or 73, 82 (1873) (“The true rule was undoubtedly laid down in the case of Commonwealth v. Webster [59 Mass] 5 Cush 296 [1850] . . . . Each fact necessary to the conclusion sought to be established, must be proved by competent evidence, beyond a reasonable doubt”); criminal code of 1864, § 203, Or L 1845-64 (Deady, 1866) at 476.