The appellant was tried upon a charge of murder in the first degree, found guilty of manslaughter, and has appealed from the judgment entered upon the verdict. The appellant’s first contention is that the court erred in denying his challenge to juror W. C. Stocking. It was admitted, both during the examination of the juror on his voir dire, *527and throughout the trial of the case, that the appellant had shot and killed the deceased, but it was asserted that he did so in self-defense. The juror was examined and cross-examined at length, but the substance of his answers is that he had read “something” of the account of the killing in a newspaper; had heard it discussed “a little” by one of his neighbors; that from what he had heard and read he formed no opinion as to the guilt or innocence of the appellant “that would be permanent;” that it was his opinion that, if a person takes a life, he has committed a crime, unless the circumstances justified the killing; that he had no opinion as to whether any justification existed in this case; that if the evidence should disclose that the appellant was justified in killing the deceased, he would give him the benefit of that defense; that he had no prejudice against the appellant, and entertained no opinion that would present him from giving him a fair and impartial trial according to the law and the evidence, and that he would take the law of the case from the court. More briefly expressed, the juror’s view was that, where the killing is admitted, a crime is presumed until some evidence of justification has been submitted. In this respect his view of the case was in harmony with the law. Speaking upon the identical question, in State v. Payne, 10 Wash. 545, 39 Pac. 157, at page 553, this court said:
“If he lulls another he must, in the absence of a showing to the contrary, be presumed to have intended to kill him. And while it is true that even although he did intend to kill he may not be guilty of murder, or of any other crime, yet if he is not, it is by reason of some fact in justification of his action, the burden of proving which public policy demands should be cast upon him. . . . The proper instruction is that the presumption will have force unless there is something in the case to rebut it.”
This view was adhered to in State v. Clark, ante p. 128, 107 Pac. 1047:
“The rule as generally stated is, that when the killing is shown, and self-defense is pleaded, it is incumbent upon the *528accused to establish this defense, unless it is shown by the evidence offered by the prosecution to establish the lulling.” 21 Cyc. 883.
The same view is expressed in State v. Cephus, 6 Pen. (Del.) 160, 67 Atl. 150; State v. Moss, 77 S. C. 391, 57 S. E. 1098, and State v. Peterson, 149 N. C. 533, 63 S. E. 87.
The fact that a juror had formed or expressed an opinion that the defendant shot and killed the deceased did not disqualify him as a juror where the killing was conceded and self-defense claimed. State v. O’Shea, 60 Kan. 772, 57 Pac. 970; State v. Everett, 62 Kan. 275, 62 Pac. 657; Tubb v. State, 55 Tex. Cr. 606, 117 S. W. 858. The same general principle is announced in State v. Boyce, 24 Wash. 514, 64 Pac. 719. Indeed, we cannot conceive how a frank juror, who carefully weighed his words, could have answered differently. As we have seen, when one has taken a human life, the law does not presume that the homicide was justifiable, but presumes the contrary. We are not aware of any principle of law which requires the juror to accord a greater presumption of innocence to a defendant than the law accords him in the particular case. The learned trial court instructed “that where homicide is proven, the presumption is that it is murder in the second degree. If the state would elevate it to murder in the first degree, she must establish the characteristics of the crime, and if the defendant would reduce it to manslaughter the burden is on him.” It is not argued in the briefs, nor was it claimed at the bar, that this instruction is erroneous; and as we have seen, such claim would not be tenable. This rule is not in conflict with the general rule that a juror must, in all proper cases, accord to the defendant the presumption of innocence, as announced in Rose v. State, 2 Wash. 310, 26 Pac. 264; State v. Coella, 3 Wash. 99, 28 Pac. 28; State v. Murphy, 9 Wash. 204, 37 Pac. 420; State v. Wilcox, 11 Wash. 215, 39 Pac. 368; State v. Rutten, 13 Wash. 203, 43 Pac. 30; State v. Moody, 18 Wash. 165, 51 Pac. 356, and State v. Riley, 36 Wash. 441, 78 Pac. 1001. Where the law *529presumes 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 self-defense, 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-*530criminal 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., Fulleuíon, and Moiuiis, JJ., concur.