specially concurring.
*465I
Like Justice Lent, I cannot join the conclusion in Justice Campbell’s lead opinion that there was sufficient evidence that defendant acted under the influence of extreme emotional disturbance. There is evidence that defendant acted in defense of self and others. He requested and received an instruction submitting that defense. There is no evidence, however, that defendant suffered an “emotional disturbance” or, if so, that it was “extreme” or that defendant acted under the influence of that condition. If the defendant’s testimony is believed, defendant was perhaps the only cool-headed, deliberate person on the scene.
The lead opinion discussion of law does not support its conclusion that there was evidence of extreme emotional disturbance. It is true that “extreme emotional disturbance” was intended as a broader concept than “heat of passion” in the sense that it was intended to refer to a range of situations broader than discovered adultery. There is no suggestion in the statutory phrase or in its history, however, that it was intended to refer to emotional states of lesser intensity than heat of passion. Surely there was no suggestion that the phrase “extreme emotional disturbance” was to refer to emotional states of the intensity of having been “taken aback” or fear for safety. The lead opinion cites not a single case analogous to this fact situation from any of the many jurisdictions which have enacted the concept of extreme emotional disturbance propounded in the Model Penal Code. The lead opinion offers only an explanation of “extreme emotional disturbance” by a New York court which contradicts its holding and supports the conclusions of Justice Lent and myself:
« <* * * [T]he emotional state of an individual who: (a) has no mental disease or defect [which establishes non-responsibility]; (b) is exposed to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions.’” People v. Ford, 423 NYS2d 402, 404, 102 Misc 2d 160 (1979). (Emphasis added.)
There is no evidence in this case of “an extreme emotional reaction.” There is none of a resulting “loss of self-control.” *466Nor is there evidence that defendant’s “reason [was] overborne.” To the contrary, defendant’s evidence is that he was acting deliberately and reasonably in defense of self and others. The holding of the lead opinion is inconsistent with the statutory meaning and I am aware of no support for it anywhere.
I conclude that it was error to have given an instruction on extreme emotional disturbance because there was no evidence from which that fact could be found. In this I agree with Part I of Justice Lent’s dissenting opinion.
II
Although submission of the issue of extreme emotional disturbance to the jury was error, I conclude that it was harmless error. Indeed, it was probably an error favorable to the defendant. In order to understand that conclusion, it is necessary to understand the strange statutory history of the concept of extreme emotional disturbance, part of which is set out in the lead opinion.
Prior to the 1971 comprehensive revision of the criminal code, murder was prohibited in the traditional two degrees: Second degree murder was homicide done
“* * * purposely and maliciously but without deliberation and premeditation * * ORS 163.020 (1969).
First degree murder was homicide done
“* * * purposely, and of deliberate and premeditated malice * * *.” ORS 163.010 (1969).
One form of manslaughter was homicide committed by
“Any person who, without malice express or implied, and upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kills another * * *.” ORS 163.040(1) (1969).
Thus, under the pre-revision code, proof of “heat of passion” was essentially a means of negating malice or deliberation in the course of a purposeful (i.e., intentional) homicide. See, State v. McCoy, 17 Or App 155, 173 n 2, 521 P2d 1074 (concurring opinion of Tanzer, J.), aff’d on other grounds 270 Or 340, 527 P2d 725 (1974).
For reasons we discussed more fully in State v. Quinn, 290 Or 383, 402-03, 623 P2d 630 (1981), in 1971 the legislature revised the code to provide but one degree of *467murder, intentional homicide. ORS 163.115 (1971). “Heat of passion” was abandoned because it had no independent significance if malice and deliberation were no longer elements of murder. Nevertheless, a compassionate intention to recognize intentional homicide committed under certain extenuating circumstances as a lesser crime resulted in one form of manslaughter being defined as:
“* * * a homicide which would otherwise be murder * * * committed under extreme emotional disturbance.” ORS 163.125 (1971).
In the new statutory scheme, extreme emotional disturbance was not a condition which negated elements of murder, as heat of passion negated malice and deliberation under the older scheme. It was an additional mitigating fact, rather than a contradictory fact, to be proved by one who did not wish to be convicted of murder despite evidence of intentional homicide from which murder could be found.
In 1975, the legislature lifted the concept of extreme emotional disturbance from the manslaughter statute and added it to the murder statute. ORS 163.115(1) (a) now defines one form of murder as criminal homicide
“* * * committed intentionally by a person who is not under the influence of extreme emotional disturbance.”
Manslaughter is now in two degrees. One form of first degree manslaughter is now defined by ORS 163.118(1) (b) as criminal homicide
“* * * committed intentionally under circumstances not constituting murder.”
What the legislature intended to accomplish by this amendment is unclear and the legislative history of the change is not helpful. The impetus for change was apparently the Court of Appeals decision in State v. McCoy, supra, in which three judges wrote three opinions on the burden of proof of extreme emotional disturbance. In State v. Keys, 25 Or App 15, 548 P2d 205, rev den (1976), the Court of Appeals traced the inconclusive legislative history of the amendments,1 concluded that extreme emotional *468disturbance was sui generis, and assigned responsibility to the state in a murder prosecution to disprove extreme emotional disturbance only if there is first some affirmative evidence of that fact from either the state or the defendant. My review of the legislative history confirms that set out by the Court of Appeals. Moreover, I conclude that its analysis and assignment of the burden of proof under the 1975 amendments is the most sensible, consistent with what we can discern of legislative intent.2 If there is any evidence from which it can reasonably be inferred that a defendant intentionally killed under the influence of extreme emotional disturbance, the state has the burden of proving the absence of that fact.
The instructions to the jury were as ambiguous as the statute. The jury was instructed that the state had the *469burden of proving every element, that murder was intentional homicide not committed under the influence o.f extreme emotional disturbance and that manslaughter was intentional homicide committed under the influence of extreme emotional disturbance. By finding defendant guilty of attempted manslaughter, the jury necessarily found that defendant has attempted to commit intentional homicide.
If extreme emotional disturbance is not in issue because there was no evidence of it to trigger the state’s burden to disprove it, then the result of the jury’s finding that defendant attempted to commit intentional homicide should have been a verdict of guilty of attempted murder. The only effect of the erroneous injection of the issue of extreme emotional disturbance was to enable the jury to find defendant guilty of a less severe crime than that for which they had found all the elements to have been proved beyond reasonable doubt. Thus the error was to defendant’s benefit, not to his prejudice.
If, as Justice Lent suggests, the absence of extreme emotional disturbance is now an element of attempted murder and the state has the burden of proving it, then the instruction on murder was correct and the instruction on manslaughter was erroneous, but the error was also harmless. A trial judge is obliged to submit lesser included offenses, the elements of which may be inferred from the evidence, even over objection. State v. Washington, 273 Or 829, 543 P2d 1058 (1975). If the absence of extreme emotional disturbance is an element of murder and if the jury found that the state had failed to prove that element, but had proved the other elements, i.e., attempted intentional homicide, then they would necessarily have found, in the words of ORS 163.118(l)(b), “criminal homicide * * * committed intentionally under circumstances not constituting murder.” The jury was instructed that to find defendant guilty of the lesser charge they must affirmatively find extreme emotional disturbance, whereas it would have been sufficient to merely determine that the state had not proved the absence of extreme emotional disturbance. The error would have been significant if the jury had found defendant guilty of the greater charge because the erroneous instruction increased the proof necessary for the lesser *470charge. Where, as here, however, the jury nevertheless found defendant guilty of the lesser charge, the error made no difference in the verdict, i.e., it was harmless. Therefore, even if the state had an initial burden to prove the absence of extreme emotional disturbance, this instruction was harmless error.
Ill
On the assignment of error regarding submission of verdict forms, the better practice would have been the submission of a simple not guilty verdict form, but the explanation of the court clearly covered all possible verdicts. I concur with the lead opinion that there was no error in this respect.
Denecke, C.J., and Peterson, J., join in this specially concurring opinion.
State v. Keys, 25 Or App 15, 18-19, 548 P2d 205, rev den (1976):
“In State v. McCoy, supra, we attempted to settle most of the interpretation problems, but may not have been successful because each of the members *468of the McCoy panel wrote a separate opinion. Nevertheless, it is clear that the majority in McCoy at least agreed that the burden of proof on the extreme-emotional-disturbance issue is on the state once it has been injected into a murder prosecution by competent evidence.
“McCoy was mentioned frequently during the legislative deliberations on HB 2540, which became Oregon Laws 1975, ch 577, p 1305. These 1975 amendments to the homicide statutes had several apparent purposes. One was to create an additional degree of criminal homicide, apparently to facilitate plea bargaining; thus, the present scheme is murder (life imprisonment), first-degree manslaughter (20-year imprisonment), and second-degree manslaughter (10-year imprisonment). Another change proposed to the legislature was that extreme emotional disturbance be labeled an affirmative defense; the proponents of this change made it clear they were seeking a legislative overruling of McCoy. It is equally clear, however, that the legislature, in rejecting this proposed change, was familiar with McCoy and did not intend that Oregon Laws 1975, ch 577, be any change in the basic McCoy rule that the burden of proof on the extreme-emotional-disturbance issue is on the state, once it has been properly raised in a murder prosecution.
Cl* * * * *
“We deduce from the legislative history that the new first-degree manslaughter offense (‘intentionally under circumstances not constituting murder’) means intentionally under extreme emotional disturbance. Thus the sole distinction between murder, ORS 163.115(l)(a), and first-degree manslaughter, ORS 163.118(l)(b), is the presence or absence of extreme emotional disturbance.” (Footnote omitted.)
By contrast, Justice Lent’s construction of the 1975 amendments leads him inexorably to the absurd conclusion that in a trial for murder and manslaughter:
“* * * If the evidence had been in equipoise or merely preponderated one way or the other, the state was not entitled to a conviction on either charge.” 292 Or at 480.
Whatever the legislature may have intended, it was surely not that.