¶1The following opinion was filed February 23, 1904:
¶2A motion for reargument has received' careful attention. Because of the importance of the case,, and the evident confidence of counsel that a further consideration of one question, not very fully treated in the former-opinion, should be had, we have examined the matter with care, and will depart from the usual custom of not filing a-second opinion upon coming to the conclusion that the judgment entered should stand.
¶3The question above referred to is this: Does the destruction of human life by an act of another naturally and ac*533cording to tbe ordinary course of things calculated to effect that result, in the absence of any explanatory circumstances to tbe contrary, raise a presumption of fact or of law that tbe destroyer intendeded such result and is guilty of murder in tbe first degree? Respecting counsel’s argument in support of tbe negative, in tbe former opinion we said:
• “Counsel for plaintiff in error freely admits that tbe law is as thus stated as applied to murder at tbe common law, but insists that the law is different under our statutory system. ■ No very good reason is advanced to support that idea, and no authority in support thereof is cited.”
¶4Counsel takes issue with that because be cited, before, Stokes v. People, 53 N. Y. 164, 179. This seems to be a fair, if not a sufficient answer thereto: Tbe quoted language was not used without qualification or explanation. It was said that counsel produced no very good reason or authority for bis position, since our statutes, as construed, make every intentional destruction of human life, not excusable or justifiable, murder in tbe first degree; and tbe departure from tbe common-law rule, as to tbe presumption arising from an unexplained homicide, where such departure prevails, grows out of statutory differences rendering such intentional killing a homicidal offense, either in tbe first or some lower degree according to tbe facts. Stokes v. People was not deemed important, since mere actual intent to kill was not, under tbe New York statutes when Stokes’ offense was committed, in any circumstances, necessarily, murder in tbe first degree. We referred to one of many cases that might have been cited, showing that tbe rule contended for found a place in tbe books by reason of features of many statutes not in ours. Here, actual intent to slay satisfies tbe premeditated design of tbe statute (Hogan v. State, 36 Wis. 226; Perugi v. State, 104 Wis. 230, 80 N. W. 593), and is inconsistent with any other homicidal offense. That has been so distinctly and firmly entrenched in our jurisprudence that it was supposed *534authorities to the contrary elsewhere, under different statutes, might properly be referred to as not in point. Counsel now cites quite a number of adjudications, not taking note of our suggestion that decisions under statutes radically different from ours cannot be followed, further than to say that some of such authorities are based on statutes like ours. Though decisions of the character cited exist in abundance, we venture to say that without any important exception the variance therein, from the doctrine that the unexplained taking of human life by means ordinarily and naturally calculated to produce that result implies a homicide committed with actual intent, satisfying the element of premeditated design of our statute, is attributable, reasonably or necessarily — the latter in most cases — to plain statutory differences. To refer in detail to the decisions at hand illustrating that, in connection with the statutes involved, would take much time and space. We will refer to a goodly number of them, however, pointing out the significant features of such statutes.
¶5The first statutory system for punishing criminal homicide in this country was adopted in Pennsylvania in 1.194. 1 Pepper & Lewis’ Dig. of Laws, 1274. “Willful, deliberate and premeditated murder, and murder committed in the perpetration or attempt to perpetrate” certain other specified offenses, were made murder in the first degree, and all other, murder in the second degree. It was early construed as rendering mere intent to kill not inconsistent with murder in the second degree, and as requiring, in order to raise the grade necessarily to the higher degree, the independent elements of deliberation and premeditation upon the execution of the intent, the element of intent being referrable only to willfulness. Keenan v. Comm. 44 Pa. St. 55; Small v. Comm. 91 Pa. St. 304; Comm. v. Drum, 58 Pa. St. 9. The latter case will be found cited very often. It is to this effect: Mere felonious intent to kill is not sufficient to constitute *535murder in tbe first degree, not baying tbe element of fully formed design, involving premeditation and deliberation. It may be murder in tbe second degree, but to raise it to that phase of murder in tbe first degree requiring tbe element of actual intent to kill there must be willfulness, signifying intent, and tbe other elements in addition; hence tbe mere unexplained destruction of. human life raises only tbe presumption of murder in tbe second degree. That gives full effect to tbe universal rule that every sane person is presumed to intend tbe natural and probable results of bis acts. Such effect being death, tbe intent to produce death is presumed, but not that tbe act producing it was characterized by tbe other elements mentioned. Virginia, West Virginia, Tennessee, Missouri, Michigan, Nevada, Colorado, Nebraska, California, North Carolina, Texas, Iowa, Washington, North Dakota, Massachusetts, Montana, Maine, New Jersey, New Hampshire, and many other states, including by far tbe greater part of tbe states of this Union, have similar statutes. They are all based on tbe Pennsylvania model. Many decisions under them, and text-book authorities, might be referred to supporting tbe idea that tbe presumption under consideration does not necessarily go higher than murder in tbe second degree; but a careful examination of tbe cases will show a uniform distinction made therein between mere intent to kill before the fatal act, and that full intent required by tbe statute, tbe term “deliberate” being used in addition to tbe term “premeditated design.” The usual language is: “When perpetrated from a deliberate and premeditated design,” etc. Por examples we refer to State v. Fuller, 114 N. C. 885, 19 S. E. 797; State v. Carver, 22 Oreg. 602, 30 Pac. 315; McCoy v. State, 25 Tex. 33; Floyd v. State, 59 Tenn. 342; People v. Wolf, 95 Mich. 625, 55 N. W. 357; Stokes v. People, 53 N. Y. 164; McCue v. Comm. 78 Pa. St. 185; Comm. v. Drum, 58 Pa. St. 9; Dukes v. State, 14 Fla. 499; State v. Payne, 10 Wash. 545, 39 Pac. *536157; State v. Foster, 61 Mo. 549; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380; State v. McCormick, 27 Iowa, 402; Schlencker v. State, 9 Neb. 300, 2 N. W. 710; Simpson v. State, 56 Ark. 8, 19 S. W. 99; Williams v. State, 83 Ala. 16, 3 South. 616; Hill v. Comm. 2 Grat. (Va.) 594; Howell v. Comm. 26 Grat. 995. The law as declared therein is laid down without proper or any notice of exceptions in the following works: Desty, Or. Law, § 129<7/ 21 Am. & Eng. Ency. of Law (2d ed.) 163; 2 Thompson, Trials, § 2208; 1 Wharton, Or. Law, § 392; 1 McClain, Cr. Law, § 355. The following examples of what is in effect said in such decisions will clearly indicate the significance of the statutory feature we have referred to.
¶6Where an intention to kill exists, it is willful; whilst intention is of the essence of the offense, something more is required for murder in the first degree. There must be circumstances warranting the jury in finding deliberation and premeditation. The unexplained destruction of human life raises the presumption of intent to kill, but that only points to murder in the second degree, because the other constituent elements of willful killing essential to murder in the first degree, deliberation and premeditation, do not arise by presumption. State v. Foster, supra (Missouri). The similarity of this to the views expressed in Comm. v. Drum will be noted.
¶7Mere unjustifiable, inexcusable intention to kill is not enough to constitute felonious homicide above murder in the second degree. The higher degree requires premeditated intent, which does not arise from unexplained destruction of human life. Simpson v. State, supra (Arkansas). The cases are all to the same general effect.
¶8A statutory system was adopted in New York in 1829. Felonious homicides were by it divided into murder and manslaughter. Murder was divided into three distinct classes as to circumstances, but they were all subclasses of the one *537offense of murder, no degrees being established. This state antedated New York in that regard by thirteen years. ■ The original New York statute is as follows:
“The killing of a human being, without authority of law, , . in any . . . manner, unless . . . manslaughter or excusable or justifiable homicide, shall be murder in the following cases:
“1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being:
“2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual:
“3. When perpetrated without any design to effect death, by a person engaged in the commission of any felony.” 2 R. S. N. Y. 1829 (1st ed.), p. 656, pt. 4, c. 1, tit. 1, §§ 4, 5.
¶9- By ch. 197, Laws of N. Y. 1862, the offense of murder was divided into three degrees, corresponding to the existing classes of murder. By ch. 644, Laws of 1873, a further change was made, the statute assuming this form as to homicide in the first degree:
“When perpetrated from a deliberate and premeditated design to effect the death of the person killed, or of any human being; or when perpetrated by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or when perpetrated without any design to effect death by a person engaged in the commission of any felony.”
¶10And as to the second degree it took this form:
“Such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide . . . •shall be murder in the second degree when perpetrated intentionally, but without deliberation and premeditation.” 3 R. S. N. Y. 1875 (6th ed.), p. 928, pt. 4, c. 1, tit. 1, § 5.
¶11As first adopted the system was said to make all felonious homicide, characterized by intent to take human life, mur*538der, but as neither making such intent essential to nor excluding it from the second phase of the offense. People v. Austin, 1 Parker, Cr. R. 166; People v. Clark, 7 N. Y. 385; particularly Darry v. People, 10 N. Y. 120. After the first change, Stokes v. People, 53 N. Y. 164, was decided, and, consistent with the rule established as to murder in the second degree, the language was used upon which counsel relies. The court leaned toward the holdings under the Pennsylvania statute. After the second change adding the element of deliberation to that of premeditated design in murder in the first degree, and the element of intent to kill, but without premeditation and deliberation, to murder in the second degree, the doctrine, that circumstances raising the presumption of intent to kill satisfy only the calls for the essentials of the latter degree, necessarily prevailed. People v. Beckwith, 103 N. Y. 360, 8 N. E. 662; People v. Hawkins, 109 N. Y. 408, 17 N. E. 371; People v. Conroy, 97 N. Y. 62.
¶12The state of Florida adopted the New York system as it existed after the change of 1862, with its judicial construction of the language of murder in the second degree. That ' explains why Dukes v. State, 14 Fla. 499, now cited by counsel, does not have the force counsel claims for it.
¶13The Minnesota system, as it existed up to its revision of 18Y8, was copied from ours, with some changes which we will mention. Actual intent to kill, coupled Avith heat of passion, was made an element in one degree of manslaughter. The language as to murder in the first degree was a verbatim copy of ours. That of the second degree differed from ours in this: For the words here, “dangerous to others . . . although without any premeditated design to effect the death of any particular individual” (sec, 2, N. S. 1849, p. 682, ch. 133; R. S. 1858, p. 928, ch. 164), were these words: “Dangerous to one or more persons . . . without any design to effect death.” • That was changed before the Minnesota revision of 1891 by making the second degree the *539third and making killing with design to effect the death of the person killed or of any other, but without deliberation and premeditation, murder in the second degree. Or. Code Minn. 1866 (Revision 1866, p. 597, ch. 94, § 2) ; 2 Gen. Stats. Minn. 1891, p. 488. Before the change referred, to the court said, respecting the presumption under consideration:
“It is presumed that every sane person intends the ordinary and natural consequences of his own deliberate act, and that every voluntary act springs from deliberate volition, and not blind passion; and as every act unlawful in itself is presumed to have been wrongfully intended till the contrary appears, it follows that such a killing, unaccompanied by any circumstances of extenuation or explanation, necessarily raises the presumption that it was intentionally and maliciously done; and unless it appears that such• intention was formed and executed under the influence of ‘a. heat of passion produced by a sudden provocation, or in sudden combat/ it is equivalent in import and meaning to a premeditated design, as that phrase is used in the statutes.” State v. Lautenschlager, 22 Minn. 514.
¶14After the change that was adhered to because the essentials of murder in the first degree were as before, the views of the court being expressed thus:
“The offense may be found to be of this grade (murder in the first degree) from the mere fact and circumstances of the killing; and where there are no circumstances to prevent or rebut the presumption the law will presume that the unlawful act was intentional and malicious, and was prompted and determined on by the ordinary and natural operations of the mind.” State v. Brown, 41 Minn. 319, 43 N. W. 69.
¶15That was affirmed in State v. Lentz, 45 Minn, 177, 47 N. W. 720, in this language:
“Murder in the first degree may be proved by the mere fact of an intentional killing. . . . The evidence contained no suggestion of any provocation or mitigating circumstances, or that the killing was accidental, the testimony *540of tbe defendant himself excluding any such hypotheses. The killing, if committed by defendant, was murder in the first degree.” ■
¶16This court rejected the New York construction of the language of our murder in the second degree in Darry v. People, 10 N. Y. 120, holding that the legislative plan here was to make every inexcusable, unjustifiable homicide, intentionally effected, murder in the first degree, to make the element of intent to kill an essential of that and to exclude it from all other degrees of felonious homicide; and to that end that the terms “design” and “premeditated design” were used synonymously and as meaning only actual intent. Hogan v. State, 36 Wis. 226. The court was free to and did place its own construction on the statute, the language thereof not having received construction in New York before its adoption here, further than to the effect that every homicidal offense characterized by intent to kill is murder, not manslaughter, which was adopted. That' is, as seems plain, in harmony with constructions of statutes elsewhere, except in the instance referred to, and such as are explained by radical ■difference in language. At this time there is no conflict between this court and that of New York, because the statute there has been changed, as we have seen, to make the literal •sense thereof conform to the judicial construction; and our statute has been likewise changed. The revisers of 1878 changed the language of murder in the second degree, “without any premeditated design to effect the death of the person killed or of any particular individual,” to “without any premeditated design to effect the death of the person killed or •of any human being.” That change was made to make the statute conform in literal sense to Hogan v. State, 36 Wis. 226. See Revisers’ Notes, 1878, p. 297.
¶17From the foregoing it follows that all the decisions and remarks of text writers to the general effect that the presumption under discussion points only to murder in the sec*541ond degree, instead of supporting tbe idea that- it should be-so restricted under our statutes, conclusively indicates to the-contrary, since the element of intent to kill here is consistent only with murder in the first degree, and such element being present no additional element of deliberation is necessary, all the deliberation essential being involved in the actual formation of the purpose to kill before the perpetration of the fatal act. The formed design or intent of our premeditated design need not exist any appreciable time or time sufficient for the intervention of any independent element between it and the fatal act, it being'sufficient if it actually precedes such act. Intent to kill means just what the ordinary signification of the words suggest. Whether it be de- . scribed by the words “actual intent,” “design,” or “premeditated design,” makes no difference. When we leave entirely out of view those subtleties often indulged in in discoursing-on the meaning of “premeditated design,” or “deliberate and premeditated design,” and give to the words only the meaning ordinarily attributed to them in the common use thereof, a person who effects the death of another by design does so-intentionally and the design or intent is understood to necessarily precede the act by which the purpose is accomplished. In other words, the intent is understood to be premeditated,, or thought of, because without mental action the purpose-could not be formed. So when it is said that the slayer intentionally caused the death of his victim, it is at the same-time said that he caused it by design and by premeditated design. That the word “premeditated,” as used in our statutes on the subject of felonious homicide, has no other significance than that the design must precede the homicidal' act, is indicated from the evident purpose of the statute makers to give the same meaning to the term “premeditated design,”' where used inclusively in murder in the first degree, as to “design” where that word alone is used exclusively in-murder in the third degree and manslaughter in the first,. *542second and third degrees. We should say in passing that this is only repeating the reasoning found in Hogan v. State, to render as clear as we can the reason why circumstances, from which, unexplained, arises the presumption of intent to destroy human life, may, and in case they are such as naturally and in the ordinary course of things would be expected to produce that result, necessarily must, point to the offense of murder in the first degree, and that only.
¶18No uncertainty as to the matter here discussed would probably at any time have existed here after the decision in Hogan v. State, had the reasoning there been followed without interruption. It was somewhat lost sight of in Clifford v. State, 58 Wis. 477, 17 N. W. 304, language being there used indicating that actual intent to kill is one thing, and premeditated design to kill another. The reasoning is along the lines of decisions under statutes having the several elements of willfulness, deliberation and premeditation. It went beyond many of them in that it indicated that the element of lying in wait, of deliberation upon the execution of the intent, is essential. Whereas, in Hogan v. State it was said:
“The premeditated design of our murder in the first degree is simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent.”
¶19In the Clifford Case it was said:
“Intentional and premeditated design are very far apart.”
¶20The general treatment of the subject in the opinion led to the mistake in Terrill v. State, 95 Wis. 276, 70 N. W. 356, and Sullivan v. State, 100 Wis. 283, 75 N. W. 956. In the former the reasoning of Mr. Justice ObtoN was adopted and that of RyaN, O. J., in the Hogan Case, was criticised. The error became clearly apparent when Perugi v. State, 104 Wis. 230, 80 N. W. 593, was decided, the rule of the Hogan Case being re-established. That was reviewed and-approved *543in Miller v. State, 106 Wis. 156, 81 N. W. 1020. Tims, tlic idea that the premeditated design of the statute includes necessarily any element of deliberating upon the execution of the intent was emphatically repudiated.
¶21Had the text writers comprehended better the exceptions to statutes in general, this language in 1 McClain, Cr. Law, § 359, would not have been written without noting and giving significance to such exceptions:
“It has been said in some case's that an intentional killing, the intent to kill being shown by the use of a deadly weapon, will, in the absence of any evidence of justification, excuse, ■or mitigation, be murder in the first degree. Such a presumption is denied, however, in other cases, and it is said' that killing with a deadly weapon is not enough alone to show ■deliberation and premeditation. . . . However, according to- the great weight of authority such presumption does not arise from proof of intentional killing alone, and from such evidence, without more, the jury woxrld not be justified in convicting of the first degree.”
¶22The conflict of authority referred to appears only when ■one does not appreciate the fact that statutory differences ■correspond to differences in the adjudications. Strange it seems that the author did not take up the various statutes, ■classify them, as may easily be done, and show how it came about that in many and most jurisdictions the presumption under discussion has been held to go only to murder in the •second degree, while in a few jurisdictions, including our own and that of Minnesota, it is held to go to murder in th,e first degree. Bishop, in his new Criminal Procedure, vol. 2, § 602, recognizes the wide difference in the statutes to which we have referred, this language being used:
“If the deadly weapon is used in a way to take life, the not-conclusive presumption is that the party meant this result ; so that the first degree of the offense is, under most of our statutes, shown. But a mere killing with such weapon, with nothing more, is not murder in the first degree. And where the statute requires a more distinct premeditation, or *544more intense malice, the verdict can be only for the second degree. But it should be borne in mind that the circumstances and statutes differ, and that the jury should pass on the question.”
¶23No case is referred to by the author, except those under statutes differing from ours, requiring something more in murder in the first degree than mere intent to kill, yet he concludes that a presumption of fact arising from the unexplained use of a deadly weapon in a way ordinarily calculated to produce death, and which does produce it, arises, of such strength to warrant a jury, if they see fit, in finding murder in the first degree. That is really as far as it was necessary to go in this case, and as far as the court in fact went; though it seems that, since under our statute actual intent to kill, executed, without any other element, there being no circumstance reducing the offense below that of the highest, constitutes murder in the first degree, the presumption of law, that every person intends the natural and ordinary consequences of his voluntary acts, must, when the act causes the death of a human being, include the presumption that the perpetrator thereof intended that result and is guilty of murder in the first degree, casting upon him the burden of producing evidence to at least involve the truth of the matter in, reasonable doubt. This court said in the CliffordCase, where a conviction was had of murder in the first, degree, that the expression in the trial court’s instructions, “It is presumed that a reasonable person intends all the natural, probable and usual consequences of his act,” is strictly correct in all moral action or human affairs, and is an axiom of the law; and that the expression, “If a reasonable man uses a deadly weapon and life is taken, he is presumed to intend the natural consequences of his act and would be guilty of murder,” — “is but an application of the principle of homicide with a dangerous weapon likely to kill.” “If a weapon likely to kill, and which did kill, was used, the intent *545is presumed that such a natural and reasonable consequence would follow the asáault, and nothing less.” True, in connection with that, language was used of the character heretofore referred to, but, as we have seen, so far as it suggested that there may be an intent, a mental purpose to take human life, in some other homicidál offense than the first, such idea has been repudiated. What was said in respect to the presumption under discussion, therefore, stands as an authoritative declaration to the same effect as that contained in the opinion in this case, which counsel thinks is preju-dicially wrong to plaintiff in error.
¶24The result of a full response to counsel’s appeal for a reconsideration of the question above discussed is that the conclusion in respect thereto, embodied in the judgment rendered, is correct. Therefore the motion for a rehearing must be denied.
¶25By the Court. — So ordered.