(dissenting)—I would affirm the jury's verdict finding petitioner guilty of first degree murder. A new trial is not warranted since the instruction allegation is not one of constitutional magnitude, but one of statutory construction. Thus, the petitioner's contention is not timely, having been raised for the first time in this appeal. It is well settled that an instruction must be adequately objected to at trial in order to preserve the issue on appeal. State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980).
The majority's statement of facts relating to the issue of self-defense is somewhat incomplete. There was no evidence that decedent had ever verbally threatened petitioner or made any threatening gestures toward petitioner. On the day of the attack decedent was not armed with any type of weapon. During the attack witnesses heard petitioner state that the victim had taken his wife and job, yet none heard the alleged insulting remarks by the deceased. Petitioner stabbed his victim 12 times—8 in the head and 4 in the shoulder and chest area. He did not cease his attack until a bystander pulled a gun and fired a shot in the air. All facts considered, those supporting the claim of self-defense are nearly nonexistent. I accordingly question whether the instruction on self-defense was required and, therefore, whether it being given constituted prejudicial error. My major concern with the majority opinion, however, is the burden of proof it imposes upon the State.
The United States Supreme Court holdings regarding shifting of burdens of proof are somewhat obscure. It is *502clear, however, that it is not a constitutional imperative that a state
must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. . . . Proof of the nonexistence of all affirmative defenses has never been constitutionally required
Patterson v. New York, 432 U.S. 197, 210, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). The state legislatures may define crimes so as to place the burden of proving a defense upon defendant. As noted in Patterson, " 'The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant." 432 U.S. at 203 n.9, quoting Morrison v. California, 291 U.S. 82, 88-89, 78 L. Ed. 664, 54 S. Ct. 281 (1934).
Absence of self-defense is not a statutory element of first degree murder. Further, self-defense does not negate any element of first degree murder. Accordingly, pursuant to Patterson our state Legislature effectively cast upon the defendant the burden of proving the justification for his killing another. The prosecution does not bear the burden of disproving its existence beyond a reasonable doubt.
The 1909 criminal code expressly provided that a killing was murder or manslaughter "unless it is excusable or justifiable". Laws of 1909, ch. 249, §§ 140, 141, 143. This court construed such language to mean that the absence of self-defense, a justification, was a statutory element of the crime which the prosecution had to prove beyond a reasonable doubt. State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977). The Legislature, however, adopted a new criminal code omitting all language of excuse or justification from its definition of homicide. Laws of 1975, 1st Ex. Sess., ch. 260, §§ 9A.32.030, .050, .060, .070. In addition, the Legislature set forth the circumstances under which homicides are *503excusable or justifiable in a chapter specifically entitled "Defenses". RCW 9A.16.
The majority concludes that these changes merely reflect the Legislature's relieving the prosecution of the necessity of pleading the absence of self-defense. The prosecution never had to plead the absence of self-defense specifically under the old criminal code. Rather in charging a defendant the prosecution would merely track the language of the statute. The Legislature and a task force of the Washington State Bar Association extensively considered the provisions of the new criminal code. See Washington State Crim. Just. Training Comm'n, Revised Criminal Code Training and Seminar Manual, Introduction 1-5 (compiled and edited by G. Golob & G. Mooney 1976). It is a well settled presumption that the Legislature does not do a meaningless act. State v. Wanrow, 88 Wn.2d 221, 228, 559 P.2d 548 (1977). I conclude, therefore, that the elimination of all justification language from the homicide statutes can logically only be understood to mean that the Legislature intended the absence of justification to no longer be an element of murder.
The State Court of Appeals has likewise held this to be the proper interpretation of the homicide statutes. See State v. Williams, 27 Wn. App. 848, 621 P.2d 176 (1980) (Dore, J.); State v. King, 22 Wn. App. 330, 589 P.2d 306, aff'd on other grounds, 92 Wn.2d 541, 599 P.2d 522 (1979); State v. Bradley, 20 Wn. App. 340, 581 P.2d 1053, review denied, 91 Wn.2d 1002 (1978).
The Legislature's removal of the absence of self-defense as an element of first degree murder is well within the ambit of reason and fairness, since the facts surrounding a claim of self-defense, or lack of it, are usually peculiarly within the exclusive knowledge of the defendant.
The majority additionally concludes that self-defense negates the element of intent necessary to a conviction of first degree murder and thus the prosecution must bear the burden of proving the absence of self-defense beyond a reasonable doubt. I believe the statutes, read together, *504allow a contrary view.
The general criminal intent statute applicable to all crimes provides:
A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.
RCW 9A.08.010(l)(a).
The majority has taken this general criminal intent statute and has applied it to the new definition of murder by a strained literal interpretation. I would, on the other hand, use a commonsense approach in interpreting the intent statute along with the definition and common understanding of first degree murder. Accordingly, the prosecution need only prove that the defendant intended to kill his victim, not that the defendant intended to commit the crime of first degree murder.
The fact that the homicide may have been committed in self-defense, and thus justifiable, is irrelevant to whether petitioner intended to kill. Self-defense is an intentional act of killing which is, nevertheless, justified by exigent circumstances enumerated by the statute. State v. Clarke, 61 Wn.2d 138, 377 P.2d 449 (1962); State v. Stone, 24 Wn. App. 270, 600 P.2d 677 (1979); State v. Kerr, 14 Wn. App. 584, 544 P.2d 38 (1975). As stated in State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980) (Rosellini, J., dissenting), the concept of self-defense "does not deny intent." Savage, at 593.
The affirmative defense of self-defense may be analogized to the defense of entrapment, RCW 9A.16.070. With regard to both defenses, defendant in essence admits having committed the act but seeks to avoid the legal consequences of that conduct. The Court of Appeals of this state continues to reject a rule placing the burden upon the State to disprove entrapment. State v. Ziegler, 19 Wn. App. 119, 575 P.2d 723 (1978); State v. Brooks, 30 Wn. App. 280, 633 P.2d 1345, review denied, 96 Wn.2d 1021 (1981).
In my view, the Legislature effectively allocated to the defendant the burden of proving self-defense. I would not, *505however, require a defendant to prove self-defense beyond a reasonable doubt. The defendant should assume the burden of producing evidence of such nature and quality as to raise the issue of self-defense and justify a reasonable doubt of guilt if upon the whole evidence the fact finder entertains such doubt.4
I see nothing unfair in such a procedure. As the United States Supreme Court stated in Patterson, at pages 201-02:
Among other things, it is normally "within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion," and its decision in this regard is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."
(Citations omitted.)
The above rule is the correct one and this court should adopt it. It has the virtue of relative simplicity and should eliminate any apparent confusion that may arise from attempting to harmonize a burden of proof imposed upon the defendant with the continuing obligation of the State to prove all elements of the crime beyond a reasonable doubt. The claim of justification by self-defense will enter the case as an issue only if and when substantial evidence bearing on the issue is introduced, from whatever source. Defendant merely has the burden of producing evidence that will generate the issue of self-defense and will, when considered with all the evidence, justify a reasonable doubt in the *506minds of the jury as to whether his act was justifiable.
There are divergent opinions among the courts as to whether an instruction placing the burden on defendant is necessary. The more persuasive approach is that there is no occasion for instructions to the jury with respect to the burden of proof because defendant's burden under these circumstances is purely procedural. As the court stated in State v. Millett, 273 A.2d 504, 508, 43 A.L.R.3d 211 (Me. 1971):
When such evidence [of self-defense] is forthcoming the trial court must first, viewing that evidence in the light most favorable to the defendant, determine whether or not it is adequate to raise the self-defense issue, and, if believed, would under the legal tests applied to a claim of self-defense permit a reasonable doubt as to guilt, stemming from that claim, to arise. Having concluded as a matter of law that the self-defense issue is thus properly tendered, the trial court need only instruct the jury as to the elements of self-defense. He will have no occasion to speak of burden of proof other than to explain the State's burden of proving guilt beyond a reasonable doubt.
If sufficient evidence is presented to raise an issue of self-defense, the court need only instruct on it without allocating the burden of proof. Such instructions permit a defendant to fully argue his theory of the case. This holding would be consistent with the result reached by this court in State v. Burt, 94 Wn.2d 108, 614 P.2d 654 (1980) and State v. Hanton, 94 Wn.2d 129, 614 P.2d 1280 (1980), although based upon different reasoning. Accordingly, it would not be necessary to modify these recent cases which trial courts have relied on as the majority has done. Majority opinion, at 500. It would also be consistent with the approach taken in instructing the jury on the analogous defense of entrapment.5
*507For all the reasons stated above, I dissent.
Brachtenbach, C.J., and Dore, J., concur with Dimmick, J.
Reconsideration denied March 14, 1983.
The courts adopting this rule have stated it in various ways. See, e.g., Frank v. United States, 42 F.2d 623, 627 (9th Cir. 1930); Graham v. State, 339 So. 2d 110 (Ala. Crim. App. 1976); Payne v. State, 52 Ala. App. 453, 293 So. 2d 877 (1974); Collier v. State, 49 Ala. App. 685, 275 So. 2d 364 (1973); State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977); Bolin v. State, 297 So. 2d 317 (Fla. Dist. Ct. App. 1974); People v. Myers, 18 Ill. App. 3d 700, 310 N.E.2d 407 (1974); People v. Lenzi, 41 Ill. App. 3d 825, 355 N.E.2d 153 (1976); State v. Millett, 273 A.2d 504, 43 A.L.R.3d 211 (Me. 1971); State v. Sunday, 609 P.2d 1188 (Mont. 1980); State v. Melchior, 56 Ohio St. 2d 15, 381 N.E.2d 195 (1978); State v. Jarvi, 3 Or. App. 391, 474 P.2d 363 (1970); McGhee v. Commonwealth, 219 Va. 560, 248 S.E.2d 808 (1978).
The court in State v. Ziegler, 19 Wn. App. 119, 575 P.2d 723 (1978) stated in relation to entrapment that the burden was on defendant to produce evidence sufficient to create a reasonable doubt. The appellate court then approved the trial court's following the suggestion of the Washington Supreme Court Committee on Jury Instructions, 11 Wash. Prac. 99, pt. 4, Introduction (1977) that no *507instructions be given as to who bears the burden of proof. This reasoning was affirmed in State v. Brooks, 30 Wn. App. 280, 633 P.2d 1345, review denied, 96 Wn.2d 1021 (1981).