dissenting, but concurring in modification of sentence:
Although I agree with my colleagues that the appellant cannot now be charged with the death of the unborn child, I cannot agree with their treatment of several other issues in this case. As I have stated in previous cases (See Assadollah v. State, 682 P.2d 1215 (Okl.Cr.1981), Brett, P. J., Concurring in Part and Dissenting in Part, and Hall v. State, 635 P.2d 618 (Okl.Cr.1981), Brett, P. J., Dissenting) I do not believe that the ruling of the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), can be so lightly brushed aside. However it is discussed, the point of Sandstrom is that in a criminal case the burden is on the State to prove each and every element of the crime charged, and the State may not be relieved of that burden by requiring the defendant to prove that an element was not present. In the present case, two of the trial court’s instructions improperly shifted the burden of proof.
The last sentence of Instruction No. 13 (on intent) is: “The law presumes that every person who has reached the age of discretion is accountable for all of his acts, and the law also presumes that every sane person contemplates and intends the necessary and natural consequences of his own acts.” (Emphasis added) The instruction which caused reversal in Sandstrom v. Montana, supra, was: “The law presumes that a person intends the ordinary consequences of his voluntary acts.” In my opinion the slight difference in wording is inconsequential. And, I cannot say from reading the instructions as a whole that the jury clearly understood the appellant was not required to prove he did not intend to kill his wife.
In his eleventh assignment of error the defendant says the jury was not instructed *551that the State had the burden of proof on insanity. He filed a requested instruction, which the trial court indicated was given in substance; but while the jury was told several times that the State had the burden of establishing the defendant’s guilt beyond a reasonable doubt, they were never told that if the defendant raised a question as to his sanity the State had to prove that sanity beyond a reasonable doubt. The court’s instruction on sanity is No. 15 (quoted in part in the opinion by Judge Bussey). The jury is given the correct test of sanity (“. . . a mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act... .”). But the last sentence of the instruction (not quoted by Judge Bussey) was unfortunate: “Should you find that the defense of insanity as defined in these instructions, has been established, then you will find the defendant not guilty by reason of insanity.” (Emphasis added). The problem with this instruction is clear: the burden was placed on the appellant to prove his insanity.
Both of the above instructions raise serious problems. I recognized that the set of instructions must be read as a whole; but in doing so, I do not find a strong enough emphasis on the State’s burden of proof to enable me to say that these two instructions did not cause fatal error.
In presenting his insanity defense the defendant called a clinical psychologist who testified that in his expert opinion the defendant did not know right from wrong at. the time he pulled the trigger. During his testimony the doctor repeatedly tried to tell the jury about the background information that was the basis of his opinion, but he was repeatedly blocked by the State’s objections. The defendant says the doctor should have been able to give this information to the jury so that they could properly judge his credibility.
The defendant’s citations are persuasive. From Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812 (1952), comes the following syllabus:
Expert testimony is admissible where the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men to speak with authority thereon, and in those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts but the conclusions to which they lead, may be testified to by qualified experts. (Emphasis added).
By a reverse implication it would seem that the expert can testify to the facts as well as to the conclusions.
The defendant also cites Fuller v. Lemmons, 434 P.2d 145 (Okl.1967), in which the Oklahoma Supreme Court was concerned with the testimony of a medical expert. After stating that “[a] medical expert must always predicate his opinion on certain premises of fact,” the Court held it error that the x-ray photographs on which the expert’s testimony was based were not admitted into evidence. That is, in relation to the present case, that the jury was not given the facts on which the opinion was based.
The State’s argument, on the other hand, seems based on a misunderstanding of the case. Owens v. Oklahoma Turnpike Authority, 283 P.2d 827 (Okl.1955), involved asking hypothetical questions of an expert concerning matters about which he had no firsthand knowledge. Fidelity and Casualty Company of New York v. Hendrix, 440 P.2d 735 (Okl.1968), and the cases on which it is based involve police reports based on the hearsay statements of witnesses.
Neither of these cases fits the case now before the Court. (The defendant also cites Fidelity and Casualty Company of New York, but it is no more to the point for him than it is for the State.) Statements made by a defendant to a doctor are not pieces of hearsay which the doctor merely adopts and passes along to the jury. They are the raw material out of which he fashions his product — the psychological profile. As with *552Fuller v. Lemmons, supra, where the jury should have been given the x-ray photographs, the jury should have been given the defendant’s statements to the doctor so they could properly judge the doctor’s credibility.
For the same reason this is not a case in which hypothetical questions were needed, because the doctor had firsthand knowledge of the material facts: namely, the defendant’s background. (Whether or not he had sufficient knowledge of the defendant’s background to form a reliable opinion was a matter to be explored on cross-examination, which the district attorney did very well.)
The State cites 12 O.S.Supp.1980, § 2705, (which, of course, was not in effect at the time of the trial of this case), and Cleary, McCormick on Evidence, 2nd Ed. (1972), for the proposition that the facts underlying an expert’s opinion can only be adduced on cross-examination. This is not correct. Both the statute and the treatise state that an expert “may” give his or her opinion without prior disclosure of the underlying facts.
Finally, I would hold that on the facts in this case, the State failed to present sufficient evidence of malice aforethought, meaning that the appellant’s demurrer should have been sustained. The proof was that the shooting occurred during a heated argument between the appellant and his wife. It was when she threatened to divorce him and take their child, whom he would never again see, that he grabbed the pistol and started shooting.
Because of the above errors of law, I would reverse this case for a new trial. Nevertheless, in view of the positions of my colleagues, it is clear that a reversal of this conviction is out of the question. I therefore concur with Judge Cornish that the sentence should be modified to life imprisonment. In addition to the mitigating circumstances discussed by Judge Cornish, the facts indicate that the appellant felt remorse after the shooting. He called an ambulance and attempted to attend to his wife until it could come; and he called the police after she died.