(dissenting)—The appellant answered by way of a plea of confession and avoidance. 31 Cyc. 128. He admitted the killing, but avoided its legal effect by pleading an excuse therefor, alleging affirmatively that, although he did in fact kill respondents’ decedent, he did so under such *445conditions and circumstances “as by law he well might,” in legal effect. This was necessary to be specially and affirmatively pleaded. 4 Ency. Plead. & Prac. 667; Rem. & Bal. Code, § 264.
Under no system of jurisprudence that I have ever noticed has it ever been consistently held that such a plea, to avail, need not be supported by a preponderance of proof. An affirmative defense is “subject to the same rules as the case of a plaintiff who has the affirmative of an issue.” Wadhams v. Page, 6 Wash. 103, 32 Pac. 1068.
Furthermore, the decision in this case would adopt a much more liberal and lenient rule in civil cases than prevails in homicide prosecutions in this state, and the decisions of this court in a number of homicide cases from State v. Payne, 10 Wash. 545, 39 Pac. 157, down to State v. Clark, 58 Wash. 128, 107 Pac. 1047, are wholly departed from or overruled.
The instruction in question was undoubtedly correct and should be approved and the judgment affirmed. I therefore dissent.