(concurring specially).
I concur in the opinion as written including the majority’s finding in Division III that defendant’s contentions concerning error in the intoxication instruction were not properly preserved. I believe it is appropriate, however, to express my view on the merits' of those contentions.
As noted by the majority the instruction was based on Iowa Uniform Jury Instruction 501.18. It was as follows:
“INSTRUCTION NO. 8
It is the claim of the defendant that at the time and place of the alleged acts relied upon by the State for conviction, the defendant was intoxicated.
Voluntary intoxication, in and of itself, does not amount to an excuse for the commission of a crime. As you have been told in previous instructions, a necessary element of the offense charged in the information is a particular intent. Intoxication is a defense only when the mental disability produced thereby is such as to render the intoxicated person incapable of forming the requisite criminal intent. Even though one may be under the influence of intoxicating liquor, he will not be absolved of criminal responsibility if he still possesses mental capacity sufficient to entertain the intent requisite to a particular offense; and, one will not be absolved of criminal responsibility if the requisite criminal intent is present in his mind and he then voluntarily becomes intoxicated before committing the act.
In order for the defendant to avoid responsibility for his alleged act, by reason of his intoxication, he must prove by a preponderance of the evidence that he was in such a state of intoxication that his mind was incapable of forming the criminal intent requisite to the offense charged as defined in these instructions. By ‘preponderance of the evidence’ is meant the greater weight or strength of the proof.
Even though the defendant fails to sustain his burden of proof on this issue, you may consider the evidence of intoxication along with all other evidence in the case, and the lack of evidence, if any, in determining whether or not the State has proved the defendant guilty beyond a reasonable doubt.”
Defendant’s requested instruction, which trial court refused, defined the relevance of evidence of intoxication in substantially the same way but omitted all reference to defendant having the burden of proof. It would tell the jury the evidence was to be considered in determining whether the State proved defendant acted with specific intent.
Although trial court’s instruction conforms to the rule we have previously fol*789lowed when the defense of voluntary intoxication is urged, I think it is erroneous on three grounds: (1) it violates defendant’s right to due process of law by shifting to him the burden of proof on an element of the crime; (2) as a matter of policy the risk of non-persuasion should remain with the State as to all affirmative defenses; (3) the instruction is confusing and contradictory.
I. Due process. A defendant is assured due process of law under Amendment 14, Constitution of the United States, and Article I, § 9, Constitution of the State of Iowa. It cannot be disputed that “when the burden of persuasion is shifted to the defendant to disprove essential elements of a crime * * * then it is certain that the due process clause of the Fourteenth Amendment has been violated.” Stump v. Bennett, 398 F.2d 111 (8 Cir. 1968), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L. Ed.2d 466. Appropriate sensitivity to the rights of those threatened with loss of liberty would, I am sure, lead us to the same conclusion under our state due process clause.
We have had occasion to discuss the question of burden of proof on at least six theories of defense frequently urged in criminal cases. They include self-defense, entrapment, diminished responsibility, alibi, insanity and intoxication. Where there is evidence in the case, from whatever source, to support the theories of self-defense and entrapment, we have required the State to disprove the defense beyond a reasonable doubt as an additional element in its case. See, e. g., State v. Ebelsheiser, 242 Iowa 49, 43 N.W.2d 706 (1950) (self-defense) ; State v. Fagan, 190 N.W.2d 800 (Iowa 1971) (entrapment). The reason for requiring the State to negative these defenses as additional elements in its proof is rooted in their analogy to confession and avoidance in contrast to defenses which only deny elements of the offense. See McCormick on Evidence, § 341 at 801 (Second Ed. 1972).
Where a defendant relies on a defense such as diminished responsibility, recognized in State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964), in denying an element of the offense, we have not required the State to disprove the defense as an additional element of its case. The reason is the jury is separately told the State must affirmatively prove the element involved as part of its case. Accordingly, evidence raising a theory of defense like diminished responsibility is simply to be considered by the jury in determining whether the State met its burden to prove the element involved.
Since the decision in Stump v. Bennett, siipra, we have felt obliged by the due process clause of Amendment 14 of the Federal Constitution to treat the defense of alibi in this latter category. See, e. g., State v. Evans, 169 N.W.2d 200 (Iowa 1969); State v. Galloway, 167 N.W.2d 89 (Iowa 1969). Presence of the defendant at the scene of the crime is deemed to inhere in the elements of the offense which the Státe must prove. Evidence he was not present bears on whether the State has proved those elements.
However, we have not had occasion since Stump to reexamine defenses other than alibi as to which we have held the defendant has the burden of persuasion. Insanity and intoxication are examples. We have held a defendant must prove his insanity defense by a preponderance of the evidence before he is entitled to acquittal. State v. Wegener, 180 Iowa 102, 162 N.W. 1040 (1917). We have given similar treatment to the defense of voluntary intoxication. See, e. g., State v. Church, 169 N.W.2d 889 (Iowa 1969).
The rule as to the insanity defense was treated in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), which upheld an Oregon statute placing the burden on a defendant to prove an insanity defense beyond a reasonable doubt as non-violative of federal due process. I believe Leland is no longer viable. It pre-dates *790the incorporation by the United States Supreme Court of most of the Bill of Rights and a number of federal procedural standards into the due process clause of the 14th Amendment. Judicial restraint led the Leland court to divine one due process standard to be applied in federal courts and a separate due process standard to be imposed on state prosecutions. Compare Leland with Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895) (government has the burden of proving sanity beyond a reasonable doubt when there is evidence of insanity in federal criminal trials.)
Justice Frankfurter, usually an advocate of judicial restraint, was joined by Justice Black, the proponent of the literal incorporation theory, in a powerful dissent in Leland. More importantly the holding in Leland has been completely undermined by subsequent virtual abrogation of the double due process standard. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and later similar cases appying federal due process standards to state prosecutions. It is now manifest that the due process clause of Amendment 5, Constitution of the United States, is applicable to state prosecutions through the due process clause of Amendment 14. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed. 2d 707 (1969) (double jeopardy); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (the right to compensation for property taken by a state for public use); Gardner v. Broderick, 392 U. S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) (the privilege against self-incrimination). As stated by the court in Benton, “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ * * * the same constitutional standards apply against both the State and Federal Governments.” 395 U.S. at 795, 89 S.Ct. at 2063, 23 L.Ed. 2d at 716.
Despite Leland, Colorado later held a statute requiring a defendant to establish an insanity defense by a preponderance of evidence did impermissibly shift the burden of persuasion under its own constitutional due process provision. See People v. District Court For County of Jefferson, 165 Colo. 253, 439 P.2d 741 (1968); cf. Constitution of Iowa, Art. I, § 9.
Stump v. Bennett, supra, invalidated Iowa’s rule placing the burden of proving alibi on a defendant. The United States Supreme Court subsequently reversed and remanded Johnson v. Bennett, 386 F.2d 677 (8 Cir. 1967), involving the same Iowa practice for consideration in the light of Stump, which it declined to review. See Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968); Johnson v. Bennett, 414 F.2d 50 (8 Cir. 1969). In the light of Benton v. Maryland, supra, Stump and Johnson offer a more persuasive basis than Leland by which to ascertain the present federal due process standard as it relates to placing burdens of proof on defendants in criminal cases.
I believe, as did the court in Stump of our former alibi rule, whatever the status of Leland today, there is no doubt our rule as to the affirmative defense of intoxication shifts the burden of persuasion to a defendant to disprove an essential element of a crime, in this case specific intent. In doing so it violates the due process standard. Stump v. Bennett, supra, 398 F.2d at 116.
Our rule actually shifts what Wigmore describes as two burdens of proof, the burden of producing evidence and the burden of persuasion. 9 Wigmore on Evidence §§ 2485-2489 (Third Ed. 1940). The burden of producing evidence is the duty of a party to satisfy the judge there is sufficient evidence to generate a jury question on an issue. Id. § 2487. This does not mean the defendant must always introduce such evidence in his own case. It just means he must be able to show the judge it is in the record. It may in some situations be in the prosecution evidence. The burden of persuasion is on the party to whom the law assigns the risk of non-persuasion. Id. § 2485.
*791As to the intoxication defense Professor Wigmore believes the burden of producing evidence is on the defendant but the risk of non-persuasion remains on the prosecution. Id. § 2514 at 425. It is obvious most of our cases do not apply the Wigmore view. But see State v. Evenson, 237 Iowa 1214, 24 N.W.2d 762 (1946); State v. Harrison, 167 Iowa 334, 149 N.W. 452 (1914).
Courts elsewhere take both approaches to the intoxication defense. 1 Wharton’s Criminal Evidence, § 32 (Thirteenth Ed. 1972). For cases involving the intoxication defense which assign the risk of non-persuasion on the element of specific intent to the prosecution, see Edwards v. United States, 84 U.S.App.D.C. 310, 172 F.2d 884 (1949); People v. Evrard, 55 Ill.App.2d 270, 204 N.E.2d 777 (1965); Davis v. State, 54 Neb. 177, 74 N.W. 599 (1898).
The defense of voluntary intoxication is not generically different from the defense of alibi. They spring from the same seed. See State v. Harrison, supra, 167 Iowa at 339, 149 N.W. at 454. In placing the burden on defendant to negative specific intent by proof of the necessary degree of intoxication, the trial court to that extent required defendant to disprove an essential element in the State’s case. In so doing it denied him due process of law under the federal standard. Stump v. Bennett, supra. It is no longer consistent with the constitutional standard to impose the risk of non-persuasion on a defendant as to the defense of intoxication.
In sum, I believe the due process clauses of the State and Federal Constitutions require that in cases where there is evidence of voluntary intoxication which could give the jury reasonable doubt as to whether the State has proven requisite specific intent, such evidence is to be considered by the jury in determining whether the State has proven defendant entertained specific intent, and the risk of non-persuasion remains with the State.
II. Proper policy. Even if it were not constitutionally mandated I believe as a matter of policy we should restore order and consistency to the administration of criminal justice in Iowa by leaving the risk of non-persuasion on the State as to all affirmative defenses. There is no rational basis for allocating burden of persuasion differently for intoxication than for diminished responsibility by reason of mental defect short of insanity. See State v. Gra-menz, supra. Nor is there any compelling reason to treat the intoxication defense differently in this respect than self-defense, entrapment or alibi.
The following statement from McCormick on Evidence, § 341 at 802 (Second Ed. 1972), is pertinent and persuasive:
“As to all these claims for exoneration, their truth goes in final analysis to the guilt, to the rightness of punishing, the accused. Thus it seems inconsistent to demand as to some elements of guilt, such as an act of killing, that the jury be convinced beyond a reasonable doubt, and as to others, such as duress or capacity to know right from wrong, the jury may convict though they have such doubt. Accordingly, the recent trend is to treat these so-called matters of defense as situations wherein the accused will usually have the first burden of producing evidence in order that the issue be raised and submitted to the jury, but at the close of the evidence the jury must be told that if they have a reasonable doubt of the element thus raised they must acquit.”
I think we should now conform our rule to the recent trend in this area, even if not constitutionally compelled to do so.
III. Other error. There is a separate error in the intoxication instruction in this case similar to that found by the circuit court in Sttimp. Here as there the jury was told the State had the burden to prove each element of the crime, including specific intent, beyond a reasonable doubt. Yet defendant was not to be acquitted by reason of intoxication unless he proved by *792a preponderance of evidence he was thereby incapable of forming- the requisite intent. The jury was then told, if he failed to prove his defense, the evidence of intoxication could be considered in determining whether the State proved its case beyond a reasonable doubt. If defendant was entitled to have the jury consider the evidence in determining whether the State proved specific intent beyond a reasonable doubt as the jury was last told, the inconsistent prior assignment of the burden of persuasion to defendant required the jury to go through a useless and contradictory exercise.
The Stump court observed that even when viewing the instructions as a whole “the presence of serious confusion * * * as to burden of proof seems inescapable. If we presume, as we must, that the jury follows the court’s instructions, which instruction is the jury to follow?” 398 F.2d at 116.
I believe the instruction was confusing and contradictory. It is not consistent to give the State a burden, shift part of it to the defendant, and then shift it back to the State in the same set of instructions.
Since defendant did not preserve the errors he now asserts in the instruction on intoxication, I concur in the opinion of the court.
REYNOLDSON, J., joins this special concurrence and MASON, J., joins Division I and II thereof.