This instruction sets forth the appropriate burden of proof when the defendant claims defense of another, under either section 733(2) or section 643(3), as a defense to the charge. The burden of proof rests on the State. Defense of another is, however, a defense. Hence, the defendant must first come forward with sufficient evidence to raise defense of another 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 another is not raised in the trial and the trial judge should not instruct on defense of another. 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 defense of another, 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 another as an issue, 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. See Bearden v. State, 458 P.2d 914 (Okl. Cr. 1969). Nor does 22 O.S. 1991, § 745, shift the burden of proof. Section 745 is solely a statement of trial procedure which puts the burden on the defendant to come forward with evidence of mitigation, justification, or excuse. If the defendant does not come forward with evidence of defense of another as justification, the issue of defense of another is not raised, unless the evidence of the State has raised the issue. Meadows v. State, 487 P.2d 359 (Okl. Cr. 1971).

No instructions on the defendant's burden to come forward with evidence, or on whether the defendant has presented sufficient evidence, are presented because, as questions of trial procedure and of law, they are beyond the legitimate concern of the jury.