I concur in the reversal of the judgment in this case, but dissent from the criticism made of the following language in the learned judge’s charge to the jury: “I charge you that, if the defendant was not justified by the law of self-defense as heretofore' given you in the instructions asked, and as I shall hereafter give it to you, in shooting and killing Quirk, and the killing of Quirk was, therefore, unnecessary and unlawful, and if you are convinced by the evidence beyond a reasonable doubt that when the defendant shot and killed Quirk he did so pursuant to an intent then distinctly formed in his mind to kill Quirk, you cannot lawfully find the defendant guilty of manslaughter in the second degree, for the defendant in such case, if he killed Quirk from premeditated design to kill him, is guilty of murder in the first degree.” If there is any branch of the law where the doctrine of stare decisis should be more rigidly maintained than in any other, it is in respect to the criminal law, and particularly in regard to the law of criminal homicide. To carefully and effectually distinguish between the different degrees of felonious homicide is at best not free from difficulty, and certainly such difficulty should not be increased by new distinctions, having the effect to overrule or cast doubt upon the settled law as it has heretofore been understood in this state for a quarter of a century, and in New York, from whence our statutes prescribing the degrees of felonious homicide were adopted. Such, in my judgment, is the effect of the criticism which my brethren make of the charge referred to. Since the exhaustive discussion of this subject in the masterly opinion by RyaN, 0. J., in Hogan v. State, 36 Wis. 226, the bench and bar of this state have understood that every homicide perpetrated pursuant to a previously formed intent to take human life, and not under such circumstances as to be justifiable or excusable, is murder in the first degree. Such was the decision of this court in that case, so distinctly made as to be unmistakable, and. *293it has not since been departed from, so far as I am able to ascertain. “ Previously formed intent to kill ” and “ premeditated design to kill” are synonymous terms. Says the learned chief justice: “We take the ‘ premeditated design ’ of our murder in the first degree to be simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent, and need not be slow, or last long. This very plainly appears, not only by the force of the words used, but also by the apparent use throughout the definitions of murder and manslaughter, of the terms, ‘design’ and ‘ premeditated design,’ to effect death, as co-equal terms.” To be sure, the learned chief justice speaks of the language of the second as well as of the first and third degrees of manslaughter, as containing the words “ without design to effect death,” when such words are not there. Such error probably came from the fact that he had before him the uniform construction given to the same statute by the courts of New York to the effect that design or intent to kill must be absent in the second as well as in the first and third degrees of manslaughter. But that the court decided in the Hogan Case that the terms “premeditated design to kill,” and “previously formed intent to kill” .mean one and the same thing, as applied to our statutory murder and manslaughter, is too clear to admit of any discussion whatever. In Clifford v. State, 58 Wis. 477, the following instruction was approved: “If you find from all the evidence in this case, beyond all reasonable doubt, that the defendant shot William R. Pugh, thereby causing his death, from a premeditated design to effect his death, then, no matter what the provocation was, or what the surrounding circumstances were, unless such shooting was justifiable, as explained in these instructions, he is guilty of murder in the first degree.” To be sure, language is used by Mr. Justice OetoN in the same opinion to the effect that a mere intentional *294killing is not equivalent to the premeditated design of tbe statute, but that it is not inconsistent at all with the decision in Hogan v. State to the effect that a homicide pursuant to an intention distinctly formed in the mind to kill does constitute such equivalent. I am not able to reason sufficiently close to see any distinction between the words, “ If you are convinced by the evidence beyond a reasonable doubt that when the defendant shot and killed Quirk he did so pursuant to an intent then distinctly formed in his mind to kill Quirk, you cannot lawfully find the defendant guilty of manslaughter in the second degree, for the defendant in such case, if he killed Quirk from premeditated design to kill him, is guilty of murder in the first degree,” and the words approved in Clifford v. State. “ Premeditated design to kill,” as used in the latter, instead of “intention previously distinctly formed in the mind,” makes no difference. They mean the same. The intentional killing that may exist, consistent with manslaughter in the second degree, is the intent that springs from momentary impulse, and is implied from the mere act itself, as in Doherty v. State, 84 Wis. 152. Such must necessarily have been the design of the law, else a person in any case may deliberately kill another if such killing be done while such other is attempting to commit a felony, or after such attempt shall have failed, and be guilty only of manslaughter in the second degree. This is the first time, in my judgment, that such doctrine has been laid down by this court. The general doctrine is that, where the killing is intentional, that is, where there is a specific intent in the mind to kill which is effected by the act of the slayer pursuant to such intent, and the killing is not lawful, it is murder. 2 BisU Or. Law, § 695. In People v. Lilley, 43 Mich. 521, the subject of what constitutes the intent, which is the distinguishing characteristic between murder and manslaughter, was considered, and it was there said, in effect, that while manslaughter often involves intent to kill, it is *295not the deliberate intent which constitutes murder in the first degree. When once it'appears that the intent to take ■life existed, speaking, clearly, of intent distinctly formed in the mind, as the learned judge said in this case, and circumstances do not exist to render the killing lawful or excusable, the homicide is murder.
As said before, our statute was adopted from New York. It may be found in 2 R. S. N. Y. 1829, 661, § 11. It had a well-recognized construction there before its adoption here, hence such adoption carried with it such construction. The language of Mr. Justice EhmoNS, in People v. Austin, 1 Parker,” Cr. R. 166, states clearly such construction. We quote from the opinion as follows: “ Whether the act was murder or manslaughter under our statute depends entirely upon the existence of an intention to kill. . . . There is only one homicide known to our law which becomes murder in the absence of an intent to effect death, and that is when the act is perpetrated by one then engaged in the commission of a felony. Except in that one case, no homicide is murder without an intention to kill, and with such an intention every homicide, with the single exception already mentioned, unless it be justifiable, is murder. ... If a homicide be perpetrated without an intention to kill, it would be manslaughter and no more, except in the single case mentioned ; but, if perpetrated with an intention to kill, no matter how recent the provocation or how high the passion, it is murder. An act of homicide perpetrated with a premeditated design to effect death, though in the very highest flight of passion and springing even from an existing provocation, can find no resting place in our statute, except under the definition of murder or justifiable homicide, and, the •intention to kill being established, there is no degree or description of manslaughter in the statute which can embrace it.” To the same effect are People v. Sherry, 2 Edm. Sel. Cas. 52; People v. Pritchard, 2 Edm. Sel. Cas. 219; and People v. Beckwith, 103 N. Y. 360.
*296The foregoing sufficiently shows the reasons for my dissent from the criticism made in the opinion of the court to» that portion of the judge’s charge here discussed. Thus recording such dissent, 1 leave the subject.