presumes innocence, the jury must indulge the same presumption; but where, upon the admitted facts, the law presumes. that a crime has been committed, a juror is not incompetent. for indulging a like presumption.

The evidence shows that the appellant had lost certain articles of personal property, which were found in the possession of a son of the deceased, a child ten years of age, which he claimed to have found, but which the appellant believed he had stolen. Relative to this property, the court instructed:

"Before proceeding to instruct you upon this issue of selfdefense, I will try to simplify this issue to some extent by eliminating such other considerations and matters as do not have anything to do with the issue of self-defense; and, first, I instruct you that the merits or demerits of the controversy over articles of property have nothing to do with this question."

The appellant's second contention is that this instruction is a comment on the facts and violative of section 16, art. 4, of the constitution. We do not so read it. It was the right and duty of the court to withdraw immaterial testimony from the consideration of the jury. In effect, that was what the court did by this instruction. As we have observed, the appellant admitted that he shot and killed the deceased, but claimed that the deceased, following a conversation about the property, suddenly became enraged, said to the appellant: "I will cut your heart out for calling my boy a thief," and was in pursuit of him when he fired the fatal shot. It is apparent that it was wholly immaterial whether the boy had found or stolen the property. The only question for the jury to determine was, whether the appellant was in such actual or apparent peril when he fired the fatal shot that the law would justify the killing as an act of self-defense. Upon this question the jury was fully and correctly instructed. This was the only issue.

The deceased was killed on May 25, 1909, and the trial occurred in September following. At that time the new

34-58 WASH.

Dissenting Opinion Per CHADWICK, J. [58 Wash.

criminal code was in force. The third and last point urged is that the court erred in overruling the demurrer to the information. The precise point pressed is that the new law, which took effect June 8, 1909, repealed the old law in respect to murder in the first degree, Rem. & Bal. Code, § 2726, and that there is no proper saving clause in the new law or elsewhere. We have heretofore held adversely to this contention. State v. Hanover, 55 Wash. 403, 104 Pac. 624, 107 Pac. 388; State v. Newcomb, ante p. 414, 109 Pac. 355. Finding no error in the record, the judgment is affirmed. RUDKIN, C. J., FULLERTON, and MORRIS, JJ., concur.

CHADWICK, J. (dissenting)-The rule that, when a killing is shown the law will presume that it is murder in the second degree, and the burden is upon the state to raise it to murder in the first degree, and upon the defendant to reduce it to a lower degree, or show that the killing was justifiable was, so far as I am able to find, first announced in Hill's Case, 2 Gratt. (Va.) 594. The rule, I believe, was unknown to the common law, but is now established in this country. It seems to have grown up in applying, or possibly misapplying, the common law rule that malice will be presumed from the fact of killing (2 Blackstone, Commentaries 201) but without its qualifications. The vice of the majority opinion lies not in the presumption, but in applying it to the examination of a juror upon his voir dire. That the rule should not be taken without proper qualifications or applied in any case to the examination of a juror, seems to me to be too plain for argument. Where the killing is admitted, as in this case, and the plea of justification is set up, and where the state will be put to no proof whatever so far as the killing is concerned, there can be no reason for the application of the rule. The presumption of crime attaching to the killing of a human being is an extremely delicate instrument in the machinery of justice. It should never be left to operate alone. Alone, it might work a denial of justice. But when applied under the

May 1910]

Dissenting Opinion Per CHADWICK, J.

direction of the court, with proper caution, at the proper time, and with reference to other safeguarding principles of the law, it may be salutary. Justice, if it be justice, must be even handed. The scale must balance. If we are to put in the hand of the juror upon his voir dire the sword of the prosecution, we should insist that he also carry the shield of the defense the presumption of innocence. Unless from his whole examination his mind shows this balance, he should be rejected.

In the case at bar the juror said that he was of the opinion that "if a person takes a life, he has committed a crime. Still there may be circumstances that would justify it." "I believe that any person who takes a life has committed a crime." "I think that any person who takes the life of another has committed a crime." In answer to the question: "You have an opinion that, because Ware shot and killed Corp, that he committed a crime?" he replied: "Yes, sir." "And you have that opinion with you now? A. Yes, sir." "There is no dispute but what Mr. Ware shot Mr. Corp. Assuming that to be true, then you have an opinion that he committed a crime by reason of the killing? A. Yes, sir." The juror said that he believed in the presumption of innocence, and in answer to the question: "How can you believe all that when you say that you believe a crime has been committed here?" replied: "I would give him a chance to prove himself." He further says that he was "open to conviction." Further said that he would enter upon the trial believing that a crime had been committed by the defendant. The juror has said, in legal effect: "I believe the defendant guilty and will believe him guilty until he has proved his innocence, or (to use the juror's words) has 'proved himself." " The word "crime" has no uncertain meaning. Crimes, offenses, criminal offenses and public offenses, are synonymous. 2 Words & Phrases, p. 1736. They mean such violation of the law as will subject the offender to its pains and penalties. The juror had not been advised, and, in my judgment, it would have been improper for the court at

Dissenting Opinion Per CHADWICK, J. [58 Wash.

that time to have advised him that, when a killing is shown, the presumption that it is murder in the second degree follows. That is a rule designed to aid in extracting the truth from the testimony, and not to aid the court in the selection of jurors. Nor is there anything in the record to show that the juror indulged in such presumption, or had in mind the second degree of murder at all. Indeed, if this court is to presume anything in favor of the juror, we should presume that, when he says he believed, and would believe until he was convinced to the contrary, that a crime had been committed, he had in mind the crime of which the defendant stood charged —that is, murder in the first degree; and that, if he had not been possessed of that conviction, defendant might have been acquitted, or found guilty in some lesser degree than that returned by the jury.

It might be that some merit would attach to the argument of the majority had defendant been subject to one of two verdicts, guilty, or not guilty. But when we remember the included crimes to which the presumption relied upon does not attach, I cannot but feel that one of the first principles of the law-that a man shall be entitled to a fair trial at the hands of an impartial and unbiased jury-has been wrenched from its moorings. The cases cited by Judge Gose to the effect that, where a juror has formed or expressed an opinion that the defendant "shot and killed" the deceased, he is not disqualified, even though self-defense is claimed, do not touch the case we have before us. In the O'Shea case the court says that

"It appears upon further examination that the opinions so formed did not extend beyond the fact that O'Shea had fired the fatal shots. The fact that Dawson was shot by O'Shea, and that death resulted from the shooting, was not disputed.

Opinions upon matters not in issue do not disqualify the jurors entertaining them, and especially where, as in this case, it was shown that they had not formed or expressed an opinion as to the guilt or innocence of the defendant."

May 1910]

Dissenting Opinion Per CHADWICK, J.

The case of Everett, quoting from the syllabus prepared by the court, says: "A juror is not disqualified to sit by reason of having formed or expressed an opinion upon matters involved in the case over which there is no dispute." In the Tubb case, it was said there was "no issue made or denial interposed that he killed the deceased; nor was there any semblance of justification under the law of self-defense or otherwise; and that the juror had formed no opinion upon the only issuable fact in the case was unquestioned." In that case the only issuable fact was insanity; whereas, in this case, there was a distinct issue, not only that there was no crime committed, but further, that the act was done in selfdefense.

We have accepted this juror upon the theory that he has a right to go into the jury box with a belief that the killing was deliberate and malicious, beliefs which would not follow opinions formed or expressed upon nonissuable facts. Every accused person is entitled to a fair and unbiased jury, and it is time enough to base presumptions as to the minds of jurors upon the technical legal rule that the slayer of a human being is guilty of murder in the second degree, when the testimony is all in and can be explained to the juror and its relation to other rules of law made plain. In the administration of the law certain arbitrary rules have been found to be necessary, but over all there is a justice common to all humanity. It has found expression in that universal demand that a juror shall come to the trial of a cause with a mind free to consider not one rule of law, but all the law given him by the courtnot one fact, but all the facts as they come from the lips of the witnesses. If, as is possible under the juror's answers, he deemed the defendant guilty of the crime of manslaughter, of which he was convicted, it can hardly be contended that he was a juror within these rules, or that the law invoked by the majority is applicable.

The challenge to the juror was overruled, and thereafter an admitted challenge to another juror was overruled. The