LANGTRY, J.
Defendant appeals from conviction in a jury trial of murder. ORS 163.115. The principal question presented is whether the jury should have been instructed that in order to convict the defendant of murder it must find beyond a reasonable doubt the nonexistence of “extreme emotional disturbance” as defined in ORS 163.125 (1) (b) and (2). We find that such instructions were necessary and that the instructions given so informed the jury.
The essential facts, viewed from the standpoint of what the jury could infer from the evidence, are that defendant was estranged from his wife and knew that she was keeping company with a friend of theirs, James Stewart. Defendant came from Woodland, California to Merrill, near where his wife was staying, stopped at a bar and asked for directions to where Stewart was living. He went outside and got in his vehicle, at which time he saw his wife and Stewart pass in a pickup. He followed them for five miles, and when they stopped by an auto court, he came to the side of the pickup and with a pistol shot Stewart seven times. He went to his vehicle, reloaded the pistol, and returned and shot Stewart in the head eight more times. He then gave money and some personal items to his wife, told witnesses to notify police he was on the way to turn himself in and then did just that. When he arrived at the police station, he told what had happened; and the interrogating officer testified that “[h]e was rather calm, and talkative, * * *” and that [159]*159he showed no signs of nervousness, sweating or abnormal speech. He had acquired the pistol about a week before the homicide, and he testified that he had shot it twice at a- fence post earlier in the day. Defendant testified that he had no memory of shooting Stewart, but could remember “standing there * * * watching my hand go up and down.”
Two psychiatrists testified for the defense and one for the state. All corroborated defendant’s testimony that he had “flipped out.” The state’s psychiatrist felt that even so defendant did know what he was doing when he shot Stewart. The other psychiatrists disagreed. Some of the evidence produced by the state, which is summarized above, could fairly raise the inference that defendant had not “flipped out” at all prior to firing 15 shots into Stewart.
ORS 163.115 and 163.125 provide:
“(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:
“(a) It is committed intentionally * * *
“* * * * * ” ORS 163.115.
“(1) Criminal homicide constitutes manslaughter when:
U# * # # *
“(b) A homicide which would otherwise be murder is committed under the influence of extreme, emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation * * *
“* * * * ORS 163.125.
In State v. Siens, 12 Or App 97, 504 P2d 1056, Sup Ct review denied (1973), we stated:
“* * * There is no provision saying that the [160]*160defense of ‘extreme emotional disturbance’ under ORS 163.125 is an affirmative defense. Therefore, under * * * ORS 161.055, it is a ‘defense’ and the state has the burden of disproving it beyond a reasonable doubt * * 12 Or App at 101-2.
We went further in Siens to say:
“* * * [T]he state has the burden of proving beyond a reasonable doubt that the defendant was not under an extreme emotional disturbance as defined in ORS 163.125 * * *." 12 Or App at 104.
The state here contends that the language in Siens was dicta in that case; dicta that the state contends is erroneous. The state argues that, since the legislature failed to enumerate extreme emotional disturbance as either a defense or an affirmative defense, the provisions of ORS 161.055② relied upon in [161]*161Siens are inapplicable. Instead, the state argues that “extreme emotional disturbance” is the equivalent of the common law exception to murder that mitigates the crime to manslaughter. Former ORS 163.040 (1). State v. Trent, 122 Or 444, 454, 252 P 975, 259 P 893 (1927).③ The state urges that under common law the burden of proof to establish the manslaughter exception to murder was on the defendant, and that we should hold the defendant must establish this exception by a preponderance of the evidence.
The arguments must be considered in light of what is meant by “burden of proof.” “Burden of proof,” used loosely, encompasses two different concepts. One is the burden of producing evidence; the other is the [162]*162burden of persuading the trier of fact. The first burden determines which party faces the risk of suffering an adverse directed verdict in a given factual issue. The second determines in whose favor the trier of fact should resolve doubts left by the evidence. Askay v. Maloney, 92 Or 566, 574, 179 P 899 (1919). See McCormick, Evidence 783-85, § 336 (hornbook series, 2d ed 1972).
At common law the burden of producing evidence to establish an exception to a crime was on the defendant. State v. Rosasco, 103 Or 343, 356, 205 P 290 (1922). Wharton, Homicide 221, § 148 (Bowlby 3d ed 1907), states:
“* * * And, as a general rule, the burden of proving justification or mitigation of a homicide is regarded as resting with the accused, unless the proof already in the case sufficiently manifests it. The state in a prosecution for murder in the second degree is not called upon to prove affirmatively that there were no circumstances of justification or extenuation, to warrant a conviction * * *.” (Footnotes omitted.)
To establish a “defense,” the burden of producing evidence rests on the defendant. ORS 161.055; State v. Williams, 12 Or App 21, 503 P2d 1254 (1972), Sup Ct review denied (1973).
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LANGTRY, J.
Defendant appeals from conviction in a jury trial of murder. ORS 163.115. The principal question presented is whether the jury should have been instructed that in order to convict the defendant of murder it must find beyond a reasonable doubt the nonexistence of “extreme emotional disturbance” as defined in ORS 163.125 (1) (b) and (2). We find that such instructions were necessary and that the instructions given so informed the jury.
The essential facts, viewed from the standpoint of what the jury could infer from the evidence, are that defendant was estranged from his wife and knew that she was keeping company with a friend of theirs, James Stewart. Defendant came from Woodland, California to Merrill, near where his wife was staying, stopped at a bar and asked for directions to where Stewart was living. He went outside and got in his vehicle, at which time he saw his wife and Stewart pass in a pickup. He followed them for five miles, and when they stopped by an auto court, he came to the side of the pickup and with a pistol shot Stewart seven times. He went to his vehicle, reloaded the pistol, and returned and shot Stewart in the head eight more times. He then gave money and some personal items to his wife, told witnesses to notify police he was on the way to turn himself in and then did just that. When he arrived at the police station, he told what had happened; and the interrogating officer testified that “[h]e was rather calm, and talkative, * * *” and that [159]*159he showed no signs of nervousness, sweating or abnormal speech. He had acquired the pistol about a week before the homicide, and he testified that he had shot it twice at a- fence post earlier in the day. Defendant testified that he had no memory of shooting Stewart, but could remember “standing there * * * watching my hand go up and down.”
Two psychiatrists testified for the defense and one for the state. All corroborated defendant’s testimony that he had “flipped out.” The state’s psychiatrist felt that even so defendant did know what he was doing when he shot Stewart. The other psychiatrists disagreed. Some of the evidence produced by the state, which is summarized above, could fairly raise the inference that defendant had not “flipped out” at all prior to firing 15 shots into Stewart.
ORS 163.115 and 163.125 provide:
“(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:
“(a) It is committed intentionally * * *
“* * * * * ” ORS 163.115.
“(1) Criminal homicide constitutes manslaughter when:
U# * # # *
“(b) A homicide which would otherwise be murder is committed under the influence of extreme, emotional disturbance, which disturbance is not the result of his own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation * * *
“* * * * ORS 163.125.
In State v. Siens, 12 Or App 97, 504 P2d 1056, Sup Ct review denied (1973), we stated:
“* * * There is no provision saying that the [160]*160defense of ‘extreme emotional disturbance’ under ORS 163.125 is an affirmative defense. Therefore, under * * * ORS 161.055, it is a ‘defense’ and the state has the burden of disproving it beyond a reasonable doubt * * 12 Or App at 101-2.
We went further in Siens to say:
“* * * [T]he state has the burden of proving beyond a reasonable doubt that the defendant was not under an extreme emotional disturbance as defined in ORS 163.125 * * *." 12 Or App at 104.
The state here contends that the language in Siens was dicta in that case; dicta that the state contends is erroneous. The state argues that, since the legislature failed to enumerate extreme emotional disturbance as either a defense or an affirmative defense, the provisions of ORS 161.055② relied upon in [161]*161Siens are inapplicable. Instead, the state argues that “extreme emotional disturbance” is the equivalent of the common law exception to murder that mitigates the crime to manslaughter. Former ORS 163.040 (1). State v. Trent, 122 Or 444, 454, 252 P 975, 259 P 893 (1927).③ The state urges that under common law the burden of proof to establish the manslaughter exception to murder was on the defendant, and that we should hold the defendant must establish this exception by a preponderance of the evidence.
The arguments must be considered in light of what is meant by “burden of proof.” “Burden of proof,” used loosely, encompasses two different concepts. One is the burden of producing evidence; the other is the [162]*162burden of persuading the trier of fact. The first burden determines which party faces the risk of suffering an adverse directed verdict in a given factual issue. The second determines in whose favor the trier of fact should resolve doubts left by the evidence. Askay v. Maloney, 92 Or 566, 574, 179 P 899 (1919). See McCormick, Evidence 783-85, § 336 (hornbook series, 2d ed 1972).
At common law the burden of producing evidence to establish an exception to a crime was on the defendant. State v. Rosasco, 103 Or 343, 356, 205 P 290 (1922). Wharton, Homicide 221, § 148 (Bowlby 3d ed 1907), states:
“* * * And, as a general rule, the burden of proving justification or mitigation of a homicide is regarded as resting with the accused, unless the proof already in the case sufficiently manifests it. The state in a prosecution for murder in the second degree is not called upon to prove affirmatively that there were no circumstances of justification or extenuation, to warrant a conviction * * *.” (Footnotes omitted.)
To establish a “defense,” the burden of producing evidence rests on the defendant. ORS 161.055; State v. Williams, 12 Or App 21, 503 P2d 1254 (1972), Sup Ct review denied (1973). If he fails to meet this burden, he suffers a rough equivalent of a directed verdict on this defense in that it is not submitted to the jury unless, of course, the state has produced evidence supporting the defense in its case-in-chief.④
[163]*163As our decision in State v. Williams, supra, implies, burden of proof as used in ORS 161.055 (1) and (2), quoted in n 2, governs the allocation of the burden of persuasion and not the burden of producing evidence.
At common law the burden of persuasion to establish the defendant’s guilt in face of his introduction of evidence that his conduct was within a statutory exception to the crime charged was on the state. In a case involving a statutory exception to the prohibition law our Supreme Court gave approval to the following instruction:
“ ‘In the case of defendant’s claiming that he was intending to convert the liquor found in his possession * * * into vinegar for commercial purposes, I instruct you that the burden is on him to establish that intention. The state is not required to prove that he did not intend to make vinegar out of it. That claim is made as a justification or excuse for the possession of the liquor, and the burden is on him to establish it to your satisfaction. He is not, however, required to establish it to your satisfaction beyond a reasonable doubt, but it must satisfy your minds to the extent of the raising of a reasonable doubt in your minds of his guilt, and [164]*164unless lie does so satisfy you of that intention, and you find the liquor was intoxicating liquor as defined to you, you should find the defendant guilty. * *
C ^
“ ‘The burden of proof, however, of establishing the lawful possession of such liquor rests upon the defendant, and not upon the state. The defendant, however, is not required to establish that fact by evidence which satisfies your minds beyond a reasonable doubt of its existence. It is sufficient if his evidence in that particular creates in your minds a reasonable doubt of the defendant’s guilt so far as that particular liquor is concerned.’ ” (Emphasis supplied.) State v. Rosasco, supra, 103 Or at 359.
Thus, at common law an “exception” to a crime was the equivalent of the present statutory concept of a “defense.” ORS 161.055; State v. Williams, supra.
The apparent legislative intent in enacting ORS 161.055 was to denominate all issues that could possibly be raised by the defendant as either a “defense” or an “affirmative defense” and thus to allocate the burden of persuasion (Commentary to the Proposed Oregon Criminal Code 5, Art 1, § 4 (1970)). In the absence of specific direction by the legislature we must determine where the burden of persuasion is to be allocated. This situation is unlike that in State v. Welch, 264 Or 388, 393-94, 505 P2d 910 (1973), where the Oregon Supreme Court said:
“* * * We have to admit that the legislature probably never considered our present problem in adopting the language of the statute. However, if it had considered the problem, we suspect it would have chosen not to impose * *
All that we read in the commentary to the criminal code and in the legislative minutes indicates the legis[165]*165lature did consider the problems involved in cases like that at bar, may have failed to realize the depth of this one, but thought that the statutes enacted gave sufficient direction to the courts.
The placing of the burden of persuasion beyond a reasonable doubt upon the state in a criminal case has due process connotations, but it is a policy consideration based upon reducing the risks of convictions resting on factual error. In Re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970). In shifting this burden as to certain “affirmative defenses,” the legislature was expressing a different policy consideration. The project director for the code revision, Donald Paillette, informed the Senate Criminal Law & Procedure Committee:
“* * * In many eases where we feel it would be unfair or unjust for the state to disprove certain aspects of certain kinds of conduct, we have characterized these things as ‘affirmative defenses.’ * * *” Senate Criminal Law & Procedure Committee Minutes, February 2, 1971, Exhibit A, p 9.
In coming to our conclusion we cannot overlook ORS 136.050 which states:
“When it appears that the defendant has committed a crime of which there are two or more degrees and there is a reasonable doubt as to the degree of which he is guilty, he can be convicted of the lowest of those degrees only.”
While the legislature did not specifically divide criminal homicide into separate “degrees,” it is apparent from the statutory scheme that murder (ORS 163.115), manslaughter (ORS 163.125), and criminally negligent homicide (ORS 163.145) are the functional equivalents of different degrees of the crime of crim[166]*166inal homicide. ORS 163.005 (2). Given the positive direction of ORS 136.050 and the absence of a positive indication by the legislature that it intended “extreme emotional disturbance” to be an “affirmative defense,” we leave the burden of persuasion upon the state. The Commentary to the Proposed Oregon Criminal Code 88, 89, Art 10, § 89 (1970), indicates this section was based on the Model Penal Code § 201.3. NY Penal Law §§ 125.20, 125.25 (McKinney 1967), containing similar provisions, were also based on the same section of the Model Penal Code. We find it significant that the New York Legislature designated “extreme emotional disturbance” an “affirmative defense” while the Oregon Legislature did not.
If the trier of fact has any reasonable doubt as to whether the defendant is guilty of a crime, that doubt should be resolved in favor of the defendant. Where the doubt is in relation to whether defendant is guilty of manslaughter rather than murder, it should be resolved in favor of finding defendant guilty of the lesser crime.
The refusal to give the instruction for which exception was taken was not error because the instructions taken as a whole adequately informed the jury that, if it had a reasonable doubt as to defendant’s guilt of murder, it should not find him guilty thereof.⑤ [167]*167The instructions, paraphrased and summarized, were to the effect that the crime charged was murder; murder is intentional homicide unless it is committed under the influence of an “extreme emotional disturbance,” and the state must prove murder beyond a [168]*168reasonable doubt. The evidence relating to the existence of an extreme emotional disturbance can only be categorized as having been circumstantial, coupled with psychiatric and defendant’s own testimony. The jury was instructed that any inconsistencies in the circumstantial evidence were to be resolved in favor of defendant. This leads us to hold that no error was committed in refusing to give defendant’s requested instruction.
Defendant also assigns as error the receipt in evidence of two letters (obviously the originals) written by defendant — one to his wife and one to his father-in-law — while he was in jail awaiting trial. It is not clear from the record how they came into the prosecutor’s possession; however, their existence became known to the prosecutor because the jail authorities had read and copied them. The letters were relevant with reference to the defendant’s state of mind at the time of the homicide, and also as rebuttal about [169]*169whether his testimony that he did not remember what happened was true, because in one of them he said:
“* * * I know that I have to do some time in prison now for what I done. But I still feel I was right in doing what I did * *
And in the other he said:
“* * * I’m beginning to think I was wrong * * * to kill over a women [sic] * * *. I’ve never regreted [sic] killing Stewart * * *. I’m still not sorry I did it because any man stupid enough to fool around with a married women [sic] deserves it. * * * I’ll kill this whole world for Chris [their child] and no son of a bitch is going to raise my kid * * *. Maybe by the time I get out I’ll be out of the killing mood. But no promises to anyone. I hope you realize I’ll be out in 7 yrs. at the very most * * *. I’ll be 36 when I get out if I get life and if I have to do it again I’ll be 49 when I get out again. Plenty of time to enjoy * * * no matter where you go I’ll hunt you down like a [sic] animal and show no mercy * *
The jail officials had the authority to inspect the outgoing letters. Brooks v. Cupp, 6 Or App 539, 488 P2d 804, 47 ALR3d 1188, Sup Ct review denied (1971). Having seen such assertions as were made in them it can hardly be expected that the officials would say nothing about them. They were quite relevant and quite damaging to defendant. He wrote and sent them to people who, were obvious state’s witnesses, and by doing so set their contents at large.⑥ He is in no position to complain if they were used against him.
Affirmed.
In State v. Siens, 12 Or App 97, 504 P2d 1056, Sup Ct review denied (1973), we made no mention of the exact elements of the extreme emotional disturbance defense. In State v. Davis, 16 Or App 405, 518 P2d 1039, Sup Ct review denied (1974), our decision in effect decided that, in order for that which otherwise would be murder to be manslaughter, the defendant must have acted (a) under the influence of an extreme emotional disturbance that (b) was not the result of his own intentional, knowing, reckless or criminally negligent act and (c) for which disturbance there was a reasonable explanation. If any one of these three elements is found to be lacking, the crime is murder, not manslaughter. See also State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied (1974).