(dissenting) — The defendant was charged with first degree murder. The State's evidence showed that she shot her husband with a handgun held no more than 12 inches from his head, the bullet entering just above the left ear and emerging beside the right ear. He was lying face down on the bed when officers arrived at the scene and a pathologist gave his opinion that this had been his position at the time he was shot. There was no evidence of a scuffle. A doctor who examined the defendant found no evidence of recent trauma other than a small bruise on one wrist.
Prior to the trial the defendant had admitted shooting her husband. She testified that as a result of having been assaulted by him on a number of occasions during the 12 years they had lived together,2 she was in fear of her husband. He had attacked her only when he was drunk, and he had been drinking heavily for 2 months prior to the shooting. They had spent the early evening drinking with neighbors and at home. The defendant was preparing dinner when her husband, without provocation, came into the kitchen and hit her. She ran into the bedroom, but he followed her, grabbed her by the hair and pulled her across the bedstead, as a result of which her legs were bleeding. He still had her by the hair and was continuing to hit her about the head, when she saw a gun lying on the floor. This was a weapon which she recognized as one which the parties kept on the dresser in the bedroom, concealed in a lamp base made in the shape of a doll. Her daughter testified that she had found pieces of the broken lamp base in the room after officers had inspected the room. The officers, however, did not recall seeing the lamp or broken pieces of it.
*585The victim was holding the defendant in a bent position, according to her testimony, when she picked up the gun and then heard the sound of its report. She did not remember firing the gun, but did not deny that she had done so or that she had intended to kill or wound the victim.
The defendant reported the shooting by telephone to the operator. When officers arrived she showed them the scene of the crime. She was heard telling her daughter that she had killed her husband and that he had deserved it. She evidently made no claim of self-defense at that time.
The jury was instructed on first degree murder and lesser offenses, including second degree murder, of which they found the defendant guilty.
Since intent is an element of first and second degree murder, the court instructed the jury upon the law governing proof of that element, having previously told the jury that the burden was upon the State to prove all the elements of the offense beyond a reasonable doubt. Instruction No. 17, in its entirety, reads:
The intent with which an act is done is a mental process and as such generally remains hidden within the mind where it is conceived and is rarely, if ever, susceptible of proof by direct evidence, but must be inferred or gathered from outward manifestations by the words or acts of the party entertaining them, and the facts or circumstances surrounding or attendant upon the act with which it is charged to be connected.
The law presumes that a person intends the ordinary, natural and probable consequences of his voluntary acts. This is a disputable presumption and may be overcome by evidence to the contrary. If you should find that the defendant killed Daniel Savage, then in determining the question of intent it is important that you consider the means by which the killing was accomplished. If you should find that [s]he used a deadly weapon without excuse or justification and in such a manner as to imperil life, such facts support an inference of felonious intent, an inference which, however, must be weighed against any contrary evidence. If and when the evidence shows *586that one person assailed another violently with a dangerous weapon likely to kill, and which in fact did kill the person attacked, such evidence gives rise to a presumption that the assailant intended death or great bodily harm.
The presumption, however, may be overcome by contrary evidence, and any such evidence is sufficient to overcome it which creates in the mind of the jurors a reasonable doubt that the defendant's intent was so presumed. In the absence of evidence to the contrary, the presumption must prevail.
The defendant objected to this instruction in the trial court on the basis that it was "not the law in the State of Washington" as to the use of presumptions by the jury. Her argument in the Court of Appeals consisted of one sentence, reporting the fact that she had objected in the trial court, and citing the case of State v. Colwash, 88 Wn.2d 468, 564 P.2d 781 (1977). The prosecutor pointed out the insufficiency of the argument and made no response on the merits. That court would have been justified in refusing to treat an assignment of error so casually presented. The court did, however, give the alleged error some attention, holding that if the last line should not have been given, the error was harmless.
The acceptance of review in this case was discretionary, and in my opinion such review should have been denied. The court should not embark upon the revision of a legal doctrine where the issue is so sparely presented and developed even where the change involves only the extension of a revisionist line of cases. Such a case does not afford the court the material for deliberation that should attend upon changes in principles of law.
Upon the merits I must part company with the majority, albeit somewhat belatedly. It is obvious that I signed State v. Odom, 83 Wn.2d 541, 520 P.2d 152 (1974); State v. Kroll, 87 Wn.2d 829, 558 P.2d 173 (1976); State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977); and State v. Bauer, 92 Wn.2d 162, 595 P.2d 544 (1979). I have assumed that the trend which these cases were taking was in accord with that *587of the United States Supreme Court, as evidenced in Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975). However, that court has made it clear in County Court of Ulster County v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979), that it was not its intent to invalidate mandatory (but rebuttable) presumptions or to require that a permissive inference bears the same relation to the proven fact that a mandatory presumption bears.
After advising us that in Washington we have neither permissive inferences in criminal cases nor rebuttable mandatory presumptions but rather some nebulous hybrid which lies somewhere in between these two, the majority has concluded that instruction No. 17 has three fatal flaws. It does not quarrel with the concept that the intent with which an act is done is a mental process and as such generally remains hidden within the mind where it is conceived and is rarely if ever susceptible of proof by direct evidence. It apparently concedes that that intent must therefore be proven by circumstantial evidence. It further concedes that proof that the defendant fired a deadly weapon at the victim, producing death, justifies a finding that she intended to kill or seriously wound the victim, if there are no circumstances or other evidence tending to negate that intent. But it insists that the question is still one for the jury, even though all the evidence points toward intent and none tends to negate it.
Thus the position of the majority is that under no circumstances can there be a presumption of fact in a criminal case which is mandatory if not rebutted. While some of our recent cases have stated rules which would appear to justify this conclusion, the fact is that none of those cases dealt with a presumption which had the logical and empirical strength of that which is involved here.
State v. Bauer, supra, and State v. Odom, supra, both involved permissive inferences. In State v. Bishop, 90 Wn.2d 185, 580 P.2d 259 (1978), we upheld a statutory presumption which was mandatory if not rebutted. Some of *588the language in that case might suggest that the jury was not required to adhere to the presumption in the absence of rebutting evidence; but if read in its entirety, it is obvious that the case merely holds that proof of an element of a crime by means of a presumption does not relieve the State of its burden of proof beyond a reasonable doubt.
State v. Person, 56 Wn.2d 283, 352 P.2d 189, 81 A.L.R.2d 1088 (1960), relied upon in the majority opinion, upheld a statutory permissive inference (prima facie case) against a contention that it had the effect of compelling the defendant to testify against himself. This court said that the statute placed no burden of proof on the defendant; that if he produced no evidence in his own behalf, the case would go to the jury with the State's prima facie showing of unlawful hunting and the defendant's presumption of innocence, both to be weighed by the jury in determining the defendant's guilt or innocence. Thus the court did not reach the question whether a presumption may be so strong as to require some rebutting evidence in addition to the presumption of innocence, in order to overcome it.
The cases of State v. Roberts, supra, and State v. Kroll, supra, are most nearly analogous. They both concerned the validity of statutes which made a proven killing, which was both unjustified and inexcusable, presumptively intentional. While it would appear that this presumption has a strong rational relationship to the facts proven, we managed somehow to find that it did not. In Roberts, this was done on the basis of a footnoted hypothetical (88 Wn.2d 343 n.3), the probability of which was so remote that the United States Supreme Court would undoubtedly reject its efficacy in an attack upon the presumption. See County Court of Ulster County v. Allen, supra at n.7. Kroll relied upon Mullaney v. Wilbur, supra, where the United States Supreme Court held invalid an instruction which relieved the State of the burden of proving not only intent but also premeditation where the State proved an unlawful killing, which was not explained, qualified or palliated by the circumstances of the case. There was no exploration of the *589probability that an unexcused and unjustified murder is intentional. As the United States Supreme Court has made clear in Ulster County, an examination of the relationship between the presumption and the proven fact should be pursued in every case in which the validity of a presumption is assailed.
The United States Supreme Court in Ulster County has characterized presumptions not as a mere "device", as the majority would have us believe, but as a staple of the adversarial system of fact finding. The court there upheld a statute which made the presence of a firearm in an automobile presumptive evidence of its illegal possession by all persons occupying the vehicle, except under certain circumstances. That court said that the value and validity of any given presumption varies from case to case depending upon the relationship of the presumption to the evidence in the case.
The Supreme Court in that case, as it had in previous cases, recognized the validity of mandatory presumptions. After discussing permissive inferences, the court in Ulster County said:
A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the "no reasonable doubt" burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. E.g., Turner v. United States, 396 U. S. [398], at 401-402 and n. 1 [24 L. Ed. 2d 610, 90 S. Ct. 642 (1970)]; Leary v. United States, 395 U. S. 6, 30 [23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969)]; United States v. Romano, 382 U. S. 136, 137, and n. 4, 138, 143 [15 L. Ed. 2d 210, 86 S. Ct. 279 (1965)]; Tot v. United States [319 U.S. 463, 87 L. Ed. 1519, 63 S. Ct. 1241 (1942)], supra, at 469. In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. E.g., Turner v. United States, supra, at 408-418; Leary v. United States, supra, at 45-52; United States v. *590Romano, supra, at 140-141; Tot v. United States, 319 U. S., at 468. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases.
(Footnotes omitted.) Ulster County, 442 U.S. at 157-58, 60 L. Ed. 2d at 792-93.
The instruction complained of here, while mandatory if no contradictory evidence is present, does not place the entire burden on the defendant to produce evidence refuting the presumption. It permits the jury to reject the presumption if there is before it contrary evidence sufficient to raise a reasonable doubt that the defendant intended the result accomplished. Obviously, the circumstances of the killing, proven by the State, may be sufficient in themselves to raise such a doubt, without the defendant's having presented any evidence at all. For a hypothetical presenting such a case, see State v. Roberts, supra, previously referred to in this dissent.
Assuming no circumstances showing lack of intent, is the presumption accurate in the run of cases? Surely common sense, history and experience all tell us that it is. The presumption has been with us throughout the history of the common law, insofar as I am able to determine, and I have heard no outcry that it has sent innocent persons to prison. The common sense of it was well stated in J. Lawson's venerable Law of Presumptive Evidence 329 (2d ed. 1899), where the author says that
"If a man raises his rifle and deliberately fires its contents into the bosom of another, or by a blow with an ax, which might fell an ox, buries it into the brain of another, the inference from the act is irresistible that death was meant, and so the law presumes.
"The inferences of the mind, which are equally presumptions of law, are certain and conclusive in proportion as the acts, from their nature and character, are certain to result in death.
*591If those words, written sometime prior to 1900, are any less valid today, the majority has failed to point out wherein lies their fallacy.
That this court has recognized the validity of the presumption is manifest in State v. Moore, 61 Wn.2d 165, 377 P.2d 456 (1963). There Judge Hill, speaking for the court and answering a contention that the trial court should have instructed on manslaughter, said:
Much as we may sympathize with the defendant's "jealousy, fear, anger, and hatred," resulting from the indignities and humiliation which had been heaped upon her, the subjective claim of lack of intent to kill is belied by all of the evidence. The testimony is that she was sane and knew the difference between right and wrong; yet she procured a revolver from a place where she had hidden it and shot her husband, holding the weapon a half-inch from his head, and shot Mrs. Davidson, holding it within 6 inches of her head.
Numerous instructions made it clear that intent was a prerequisite to the verdict of first-degree murder, which the jury returned. The jury was told that the intent with which an act was done is a mental process; that the act had to be done with a design to effect death; that it had to be a premeditated design; and that, for first-degree murder, there must not only be the intention to kill and the act of killing, but there must be time for deliberation between the formation of the intent to kill and the killing.
Unless the defendant was not guilty by reason of insanity, there was no basis for any verdict but murder. There was no evidence that either of the killings was unintentional, or without design to effect the death of the victims. The trial court properly refused to give an instruction on manslaughter.
Moore, at 173-74.
The majority, however, does not find it necessary to analyze the presumption. Rather it relies on precedent in recent cases I have described earlier for the proposition that there can be no mandatory presumption.
*592I regret to say that these cases culminated in the logically insupportable proposition that while there can be a presumption which places upon the defendant the burden of producing some evidence to refute it, provided it is established that the fact presumed follows from the fact proved beyond a reasonable doubt, it cannot operate to require the defendant to produce any evidence. This proposition defies one of the fundamental principles of logic. X and Not X— that is to say, contradictory truths — cannot coexist. It cannot be that the defendant has a burden of producing evidence, but at the same time has no such burden.
If he has such a burden in a given case, then his failure to sustain that burden must operate to make the presumption prevail, as the jury was instructed in this case. Here, however, as I have already noted, the instruction as given allowed the jury to doubt the presence of intent in light of the circumstances proved, without expressly requiring the defendant to provide evidence. But assuming the burden was impliedly, or as a practical matter, placed upon the defendant to come forth with evidence sufficient to raise a reasonable doubt,3 the fact is that if such evidence was not forthcoming, it must follow as the night follows the day that the State has proved this element of the crime beyond such doubt.
The majority's anomalous principle is apparently the result of a failure to observe the distinction between a permissible inference, and a mandatory presumption which is not rebutted. A permissible inference is authorized where the inferred fact is rationally connected with the proven fact. County Court of Ulster County v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). It needs to be bolstered by the State's other evidence before the fact in issue can be said to be established beyond a reasonable doubt. *593The mandatory presumption, on the other hand, involves a presumed fact which is so consistently present where the proven fact exists that reasonable minds cannot reject it in the absence of refuting evidence. As the Supreme Court noted in Ulster County, a permissive inference places no burden of any kind on the defendant; while the mandatory (rebuttable) presumption requires him to rebut the presumption to the jury's satisfaction, that is, to raise a reasonable doubt. As the United States Supreme Court further noted in Ulster County, the jury is presumed to be rational.
To the extent that our cases of State v. Bishop, 90 Wn.2d 185, 580 P.2d 259 (1978) and State v. Bauer, 92 Wn.2d 162, 595 P.2d 544 (1979) hold that no presumption can be strong enough to require the defendant to produce sufficient contrary evidence to raise a reasonable doubt in the minds of the jury, I would say that they are ill considered and should be overruled. Whether other cases may have erroneously disapproved certain other presumptions is not necessary to decide here.
I certainly have no quarrel with the proposition that the State must prove every element of the offense beyond a reasonable doubt. The question is, Can there be a proof of circumstantial facts which, in the absence of contrary evidence, give rise to an inference which no reasonable mind can reject? I think there can be and that the presumption in this case falls into that category. Consequently, I see no error in the trial court's instruction.
Assuming the majority is correct and there was error, it was not prejudicial. The defendant's intent was clear from all the evidence. She intended at least to do her husband great bodily harm. She did not deny that fact, and all the circumstances point to it. Her defense was self-defense, a concept that does not deny intent. Upon this matter, no reasonable jury could have returned a different verdict, assuming, of course, that it rejected the evidence on self-defense, which was evidently the case here.
*594Like the Court of Appeals, I would affirm the judgment entered on the verdict.
Wright, Brachtenbach, and Dolliver, JJ., concur with Rosellini, J.
They had been married for 3 years preceding the shooting.
The requirement of "some evidence" must be equated with evidence sufficient to raise a reasonable doubt; otherwise the concept is meaningless. If the defendant does not produce that much evidence, a rational jury will find the State's evidence unshaken.