with whom CONNOR, Justice, joins, dissenting.
I agree with the majority that, when Toomey retook the car, an issue was presented as to whether he had abandoned his criminal activity, was in reasonable fear of attack collectively from Bucher, Ensley and the third individual and as to whether escaping after seizing the car at gunpoint was a reasonable response. I also agree that Toomey was entitled to have the jury instructed as to the defense of self-defense. I would hold, however, that the court’s instructions impermissibly shifted the burden of proving self-defense to Toomey.
The majority apparently agrees that, once the issue of self-defense was properly raised by the evidence, the state had the burden of proving the absence of self-defense.1 The trial court, however, instead of instructing the jury that the issue of self-defense had been raised by the evidence, instructed as follows:
The defense is ordinarily not available to a person who provokes a difficulty from which he attempts to extricate himself with excessive force unless there is a clear showing that such person abandons his initial purpose and retreats from the difficulty initially provoked and is placed in danger thereafter by an aggressive act of another, (emphasis added)
Toomey’s objection to this instruction was overruled, and his requested instruction indicating that the state had the burden of proving that the vehicle was not taken in self-defense was refused. The jury was instructed that there must be a “clear showing” of abandonment.2 Obviously, the state could not have the burden of making such a clear showing as that would be directly against the state’s interest. The jury could be left with no other impression than that Toomey had the burden of clearly showing that he had abandoned his initial purpose. I do not see how that impression could have been changed by the general instruction on burden of proof which was given earlier.
Despite the fact that self-defense was in issue, the burden of proof beyond a reasonable doubt remained on the state as to all elements of the offense.3 Thus, the state had the burden of showing that Toomey had not abandoned his initial purpose and that he was not placed in a situation where he had a reasonable apprehension of imminent danger. As the court was requested by the defendant to instruct on this issue, in my opinion, it was error to refuse to give an *1129instruction on the burden of proof as to the elements of self-defense.4
. Toomey’s attorney submitted written requested instructions pursuant to Criminal Rule 30(a).
. This is the majority rule regarding proof of self-defense. See Mullaney v. Wilbur, 421 U.S. 684, 702 n. 30, 95 S.Ct. 1881, 1891, 44 L.Ed.2d 508, 521 n. 30, citing, State v. Millett, 273 A.2d 504, 507-08 (Me.1971). See also, State v. Carter, 248 La. 730, 80 So.2d 420, 423 (1955); 43 A.L.R.3d 221, 237-39.
. The majority in Footnote 13 apparently agrees that the word “clear” should not have been used by the trial judge. In my view, the majority disregards the likely effect of this portion of the instruction on the jury.
. See DeGroot v. United States, 78 F.2d 244, 252-53 (9th Cir. 1935); Drossos v. United States, 2 F.2d 538, 539 (8th Cir.1924).