Committee Comments

Since the claim that a homicide occurred as a result of accident or misfortune in the performance of a lawful act in a lawful manner is a defense, the onus of producing evidence sufficient to raise the defense of excusable homicide remains on the defendant, unless the evidence of the prosecution has raised the issue. If the defendant fails to adduce any evidence that tends to prove that the homicide was excusable, or if the defendant's evidence is insufficient as a matter of law, the issue of the excusability of the homicide is not presented, and no instruction should be given. Thompson v. State, 51 Okl. Cr. 335, 1 P.2d 811 (1931). If the defendant presents sufficient evidence to raise the defense of excusable homicide, or if the defense is raised by the evidence of the prosecution, an instruction must be given in order to apprise the jurors of the defendant's theory of the case.

Once the defense of excusable homicide is properly raised, the burden of proving the nonexistence of the defense should rest on the State. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975). No instructions concerning the defendant's burden to come forward with evidence, or the question of whether the defendant has presented sufficient evidence to warrant an instruction, are included because these matters pertain to questions of law and of trial procedure, both of which are beyond the legitimate concern of the jurors.