Committee Comments

This instruction sets forth the appropriate burden of proof when the defendant claims self-defense under either section 733(1) or section 643(3) as a defense to the charge. The burden of proof rests on the State. Defense of property is, however, a defense. Hence, the defendant must first come forward with sufficient evidence to raise this defense as an issue, unless the evidence of the prosecution has raised the issue. If the defendant fails to come forward with evidence, or fails to come forward with sufficient evidence, the issue of defense of property is not raised in the trial and the trial judge should not instruct on this defense. Whether the defendant has come forward with sufficient evidence is a question of law for decision by the trial judge. If the defendant presents sufficient evidence to raise the defense of property, or if the defense is raised by the prosecution, an instruction must be given in order to apprise the jurors of the defendant's theory of the case.

Once the defendant has presented sufficient evidence to raise defense of property as an issue, then the State has the burden of proof to overcome the defense beyond a reasonable doubt. It is a decision for the jury as to whether the State has met the burden of proof. Bearden v. State, 458 P.2d 914 (Okl. Cr. 1969).