¶1(dissenting). I think that under the maxim “ejusdem generis” the words “or for any other purpose” found in the set-gun statute (sec. 4394) must be limited to purposes similar to “the purpose of killing game.” The purpose of killing game in the proper season is not an unlawful or criminal purpose. Out of season it is unlawful and at no time is it a felonious purpose. But the “other purpose” mentioned in the statute is not by this maxim of construction required to be exactly like the purpose of killing game, but only a purpose of the same class, genus, or family of purposes. The dominant purpose of killing game with a set-gun is either to gain ownership of the hide and carcass or to protect crops or domestic animals against the depredations of game animals. Both of these purposes niay" concur. The one is to acquire property, the other to protect property already acquired. To protect the cabbage patch against deer, the corn field against raccoons, the wheat field against domestic animals, or the chickens and ducks against foxes, mink, and otters, or the apple crop against boys, are purposes of a similar kind, if there is no intention to do bodily injury to the boys. The law relating to set-guns is well collected in the notes to State v. Barr *24(11 Wash. 481, 39 Pac. 1080) 29 L. R. A. 154. Under onr statute, if the accused set the gun. for any of the purposes above mentioned and if the death in question, although not intended, was caused by his act in so doing, he would be guilty of manslaughter in the second degree. But here there are two questions of fact involved: (1) With what intent was the gun set? (2) Was the death of the boy caused by setting the gun or did it result from some intervening cause? (lie was injured August 24, 1913, and died of a hemorrhage from the wound November 4, 1913.) The proper construction of this statute is that it elevates all homicides resulting from a set-gun, where no homicide is intended, to manslaughter in the second degree. But where a gun is set for a felonious purpose and homicide results, the graver crime is not by this statute reduced to manslaughter in the second, degree.
¶2The accused was charged with murder in the first degree and convicted of murder in the second degree. Here questions of fact were also involved. Among other instructions the court gave the following to the jury:
“Upon the undisputed facts in this case it is clear that the defendant is guilty of some crime and it is for you to determine of which crime he is guilty. . . . But the facts in this case, in any view of them, forbid the conclusion that the killing of George Kramer by the set-gun in question was either justifiable or excusable. . . . The jury have the power, if they see fit, to acquit the defendant of all crime, but in case you should do so you would disregard the undisputed facts and the law- applicable to this case.”
¶3This jury had been sworn according to sec. 4692, Stats., to “’well and truly try the issue between the state of Wisconsin and the defendant, . . . according to evidence.” To me the above instructions are equivalent to directing a verdict of guilty. True, the court gives the jury the alternative of committing perjury, that is, disregarding the undisputed facts and the law applicable to the case, if they choose. If it is to be the law of this state that a trial judge may direct a jury to *25bring in a verdict of guilty in a criminal case, so be it. But until it is authoritatively decided that a judge may do so I cannot bring myself to approve the foregoing instructions upon any pretensa that they are not the equivalent of directing a verdict of guilty. I think the judgment should be reversed and a new trial awarded.