I again dissent from the doctrine that there can be a distinct intent to kill under circumstances rendering the slayer guilty of felonious homicide, without the element of “ premeditated design ” essential to murder in the first degree. In the dissenting opinion in Terrill v. State, 95 Wis. 276, I so fully discussed the subject that it is hardly necessary to do more here than to refer to what was said there. The danger which was there apprehended, that it would subsequently be claimed from the decision of the court that there may be a distinct intent to kill and an absence of the premeditated design of murder in the first degree, and all the facts, nevertheless, exist, requisite to murder in the second degree, or manslaughter in the .first, second, or third degree, is fully exemplified by the decision in this case. There was some reason, it was supposed, in the Terrill Case, for the holding of the court there, because the words “ without premeditated design to effect death ” do not occur in the statute as to the branch of manslaughter there under consideration; but as it was then apprehended *291by the writer, the reasoning of the case indulged in has been here applied to the degrees of felonious homicide containing such words.
It should be said in passing that the reason which the writer thought possibly existed, as before stated, for the decision in the Terrill Case, because the words “without premeditated design to effect death” did not occur in the statutory description of the offense of manslaughter there being considered, is no longer apparent, having been effectually removed by a more careful study of the subject. Such investigation and study also relieves the learned chief justice who wrote the opinion in Hogan v. State, 36 Wis. 226, from the suspicion expressed in both opinions in the Terrill Case, that in what he said he overlooked the fact that in one grade of manslaughter in the second degree, under our statute, premeditated design is not included. His familiarity with the New York statutes, which were substantially like ours, and his knowledge that such statutes had been construed in that state and the term “ intent to kill ” held to be synonymous with “premeditated design'to kill,” and that such intent or design cannot exist in manslaughter in the second degree, either under that branch using the words- “ premeditated design ” or the branch omitting them, led him naturally to say what he did, making no reference to the fact that such words are omitted in our statute in regard to unnecessary killing. He undoubtedly also had clearly in mind State v. Fee, 19 Wis. 562, and endeavored to make a plain statement of the law, clearing up anything there said in conflict with the rule elsewhere under similar statutes. In People v. Divine, reported in 1 Edm. Sel. Cas. 594, where the New York statute was under consideration, the instruction to the jury, given by the trial judge, was approved, to the effect that the section of the statute declaring that every person who shall unnecessarily kill another while resisting an attempt by such other person to do an unlawful *292act is guilty of manslaughter, though omitting the words “premeditated design,” cannot be so construed that the unnecessary killing under such circumstances, even though premeditated, is manslaughter only; that such killing, when voluntary, is murder; that while it may be lawful to repel, even by death of the offender, a felonious attack on one’s property, where the attack is purely a trespass the force of the provocation is not sufficient to warrant the use of a dangerous or deadly weapon; an act of violence much beyond the proportion of the provocation is murder, but if the violence is without any instrument, or in a manner not likely to kill, it is manslaughter.
It is now squarely held that there may be a distinct intent to kill, and yet there be no premeditated design to effect death. In my judgment that is an unreasonable and dangerous doctrine, and contrary to the law as long held by this court, and contrary to substantially all reputable authority on the question. Said Ryan, C. J., in Hogan v. State, 36 Wis. 226: “ Previously formed intent to kill, and premeditated design to effect death, are synonymous terms; ” and again: “ 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.” Said Mr. Justice Edmonds, in People v. Austin, 1 Parker, Cr. R. 166: “Whether an act be murder or manslaughter under our statute, depends entirely upon the existence of an intent 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 intention every homicide, with the single exception mentioned, unless it be justifiable, is murder. . . . If a homicide be perpetrated, but without an intention to kill, it would be manslaughter and no more, except as stated; *293but if perpetrated with an intention to kill, no matter how recent the provocation or how high the passion, it is murder. . . . The intention to kill being established, there is no degree or description of manslaughter in the statute which can embrace it.” In considering the above observations by the New York court, 'it must be kept in mind that they are speaking of statutes identical with ours. We may further refer to People v. Sullivan, and People v. Clark, in the court of appeals, reported in 2 Edm. Sel. Cas. 294, 7 N. Y. 385, 396, where Mr. Justice Johnson, who delivered the opinion of the court, said: “The question here is — an intention to kill existing at the instant of striking the fatal blow, is such an intention a premeditated design within the meaning of the statute ? The words £ premeditated,’ £ aforethought,’ and £ prepense,’ possess etymologically the same meaning. They are the Latin and Saxon synonyms, expressing a single idea, and may possess in law precisely the same force. The statute has not altered the law.” £ An intention to kill, existing at the instant of striking the fatal blow, is a premeditated design within the meaning of the statute.’ Many other authorities to the same effect are cited in the Terrill Case by the writer, which the reader is referred to for further light on the subject. Intentional killing, not excusable or justifiable, I hold to be murder in the first degree, and that, as said by Mr. Justice Johnson in the New York case, the law in that regard cannot be relaxed without substantially diminishing the security of human life.
While dissenting from the opinion of the court here, as observed above, I concur with the decision as rightly made upon the doctrine of Flynn v. State, 97 Wis. 44, and cases there cited, but I find no language in that case warranting a citation of it to support the doctrine that there is a distinction between the terms “ intent to kill ” and “ premeditated design to kill.”