The following opinion was also filed May 8, 1908:
TiMxisr, J.(dissenting)The plaintiff in error, hereinafter called defendant, was indicted by the grand jury of Milwaukee county under see. 4380, Stats. (1898). The indictment, following matter "of inducement and formality, charged the defendant with having at a given time and place threatened one Strauss that he, defendant, would accuse Strauss of having theretofore committed the crime of bribery, setting forth the threat as follows:
“I know you had a corrupt agreement with the Allen’s Oornice & Corrugating Works and that you voted corruptly to allow them the contract for the repairing and replacing of the roof and gutters of the old county hospital building, and if you don’t give me $50 I will expose you and open up on you by putting a line in the paper tomorrow.”
This was averred to have been said with the intent on the part of the defendant to unlawfully and corruptly extort from Strauss the sum of $50. It was further averred that the defendant “did then and there unlawfully, wilfully, maliciously, and feloniously by said verbal threats and communication further maliciously threaten to wrongfully injure the person, property, business, and calling of Strauss,” etc. The defendant was convicted, made a general motion for a new trial and took various exceptions, and the case came before this court upon writ of error. On January 8, 1908, *658this court (by decision reported ante, p. 644, 114 N. W. 505) reversed the judgment of conviction of the defendant and remanded the case for further proceedings, without further specification, not inadvertently, as counsel seem to suppose, but because it was not agreed what further proceedings would be lawful and proper. Counsel for the state moved for a rehearing, whereupon this court granted a partial rehearing; that is to say, a rehearing upon the following questions: (1) Should the verdict be construed as convicting of the second charge in the indictment only? (2) If the verdict be construed as convicting of both charges, was the ruling of the court as to the meaning of the words “threaten to accuse another of any crime or offense” erroneous ? (3) In either construction of the verdict, has the accused been put in jeopardy as to the first charge so as to preclude a new trial as to it ?
The statute in question, sec. 4380, Stats. (1898), provides a punishment for any person who shall (1) maliciously threaten to accuse another of any crime or offense; (2) (maliciously threaten) to do any injury to the person, property, business . . .' of another. In either case (3) with intent thereby to' extort money, etc. '
I think it should have been obvious to counsel that the re-argument was ordered upon a view of this statute, in substance, tli at a threat to accuse another of a crime was one class of prohibited threats, consequently one offense, and that threats to do injury to the person, property, business, etc., of another constituted other classes of prohibited threats, consequently other offenses. This would be none the less true even if some threats might be so framed as to come within several of the prohibited classes of threats, or some threats so framed that it would require judicial inquiry to determine in which class of prohibited threats they belonged.
The word “charge” as used in the questions submitted for reargument means the characterization of the offense found in the indictment. That only one set of spoken words was *659employed, that these words were characterized by the pleader as constituting the offense of threatening to accuse of crime and also as constituting the offense of threatening to wrongfully injure the person, property, business, and calling of Strauss, and that all this was grouped in one count in the indictment, instead of having been set forth in two or more separate counts, is not very material to the questions here under consideration. I believe the concession of one of the counsel for the state that the defendant was in jeopardy in the case at bar with reference to either charge in the indictment was improvidently made. As we have seen, the defendant was charged in the indictment with having spoken certain words with the prohibited intent. It was therein further charged that these words constituted a threat to' accuse of crime, and that the same words also constituted a threat to injure the person, property, business, and calling of Strauss. On the face of the indictment it is apparent, from the words of the threat there set out, that such words do not constitute a threat to injure the person, property, business, or calling of Strauss, and so this court held in its former opinion. The defendant was not in jeopardy upon this charge because the indictment was in that respect insufficient, and no person is to be considered in jeopardy as to any crime insufficiently chárged in the indictment. The trial court held, however, that the words used did or might constitute a threat to injure the person, property, business, or calling of Strauss, and that they did not constitute a threat to accuse of crime. The jury returned a verdict of “guilty as charged.” The reargument was ordered chiefly upon the claim made in the moving papers that we had overlooked the case of Loew v. State, 60 Wis. 559, 19 N. W. 437, in the first decision of this case. Further argument and reflection have convinced me that the cases are not analogous, because in Loew v. State, supra, the jury found in direct opposition to the instructions of the court, but the trial judge thereafter denied a new trial, so *660conforming Ms view of tire law to that entertained by the jury, while in the case at bar the verdict of “guilty as charged” must by all reasonable rales of interpretation be held to mean guilty as charged according to the interpretation of the indictment given by the trial court in his instructions to the jury. Stroggins v. State, 43 Tex Crim. 605, 68 S. W. 170, and cases cited. In other words, we are to presume regularity, not irregularity. In case of conflict this rule must be paramount to the rule which refers a verdict of guilty to the valid counts rather than to the invalid counts of an indictment. Bates v. State, 124 Wis. 612, 103 N. W. 251. So that the defendant has not yet been found guilty of a threat to accuse of crime. Neither has he been acquitted of that charge by the jury. He was improperly convicted under the other insufficient charge found in the indictment. There is no disregard of instructions to be presumed and none is affirmatively shown. Any decision to the contrary would be obstructive, far-reaching,- and productive of confusion in the administration of the law; henee I answer the first question submitted for reargument in the affirmative. It is thought that this eliminates the second question submitted for reargument because in form only conditionally submitted. From a mere verbal viewpoint this is correct. But the determination of the third question submitted for reargument directly involves and makes necessary an answer to the second question. The logic of this is very dear. No person is in jeopardy unless the indictment under which he is prosecuted charges a crime. Von Rueden v. State, 96 Wis. 671, 71 N. W. 1048. Therefore, if the indictment in question did not charge the offense of threatening to accuse of crime, the defendant was not in jeopardy for that offense. But the indictment in no manner charged or set forth a threat to accuse Strauss in court or .by legal proceedings. Quite the contrary, because it set out the exact words spoken, and from those words no such inference can be drawn. So, whether the *661majority of this court are aware of it or not, their decision that the defendant was in jeopardy of punishment for the offense of threatening to accuse Strauss of crime determines that this offense is well pleaded in the indictment supported by the words of threat quoted in the indictment, and hence that the ruling of the court below to the effect that the words of the statute in question only cover a threat to charge one with an offense judicially or by public process was erroneous.
Now, what was the third question submitted for reargument ? It is not, “Was 'the defendant in jeopardy as to the first charge?” It is, “Has the accused been put in jeopardy as to the first charge so as to preclude a new trial as to it ?” The first charge, it will be remembered, is that wherein the defendant is charged with threatening to accuse of crime. I answer the third question submitted for reargument in the negative for the following reasons:
1. The error of the court below merely amounted to a misdirection or erroneous instruction to the jury. The jury nev,er passed upon the first charge. I do not see that the case at bar differs in principle from other cases of misdirection by the court with reference to what the evidence tends to establish. I do not think that every time a new trial is granted all errors in instructions of this kind favorable to the accused are by a sort of ratchet-wheel performance to remain fixed and unalterable and the new trial confined to the farcical performance of trying the accused upon what remains of the ease, even though nothing remains upon which he could be convicted. I think it is equally farcical to say that the accused cannot have the new trial which he asked for under the only valid indictment in the ease, but he must be discharged without a new trial. Was the accused in jeopardy for this offense? Many sayings may be found in judicial opinions to the effect that jeopardy begins when the accused is put on trial upon his plea to a valid indictment and a jury sworn *662and charged with bis deliverance. No donbt in many cases tbis is sufficient, as where tbe jury are thereafter discharged against his objection and before verdict. But the law cannot be built up upon,sayings of individual judges without reference to the facts in the case concerning which such things were said. A rule is quite accurately deduced from a large number of decisions and stated in Comm. v. Murphy, 174 Mass. 369, 54 N. E. 860, as follows:
“By jeopardy is meant, we think, lawful jeopardy from the commencement of the proceedings until their termination by a proper judgment and sentence, or acquittal, or what the law regards as such. It has been held in numerous cases that where, either for want of jurisdiction or from defect in the indictment, or from some error in the course of the proceedings, the verdict has been set aside or the judgment has been arrested upon a writ of error brought by the defendant, or on a motion made by him, and he has been tried again, he was not thereby put in jeopardy a second time.”
Does the law regard as equivalent to an acquittal of any particular offense a misdirection of the trial judge whereby he informs the jury that there is no evidence sufficient to- convict of that particular offense ?
In Brown v. State, 109 Ga. 510, 34 S. E. 1031, the accused was on tidal and he demurred to the complaint or accusation. The demurrer was overruled and the case ordered to proceed, after which the accused pleaded not guilty. One witness was examined and the court then came to the conclusion that the demurrer should have been sustained, and quashed the accusation. The defendant was then put on trial upon another accusation charging the same offense, and he-entered a plea of former jeopardy averring that the first accusation was good and that, arraigned thereon, he was put in jeopardy. This plea was overruled on the ground that it did not distinctly appear that the accused objected at the time to the trial judge sustaining the demurrer and ordering the *663accusation quashed, and for that reason he could not at a subsequent trial say the accusation was: good and that he was thereby in jeopardy. The accused obtained a ruling that the complaint was bad, accepted the benefit of that ruling, and was therefore not allowed to bring in question the propriety of a ruling which he himself invoked. This case cites and purports to follow Von Rueden v. State, 96 Wis. 671, 71 N. W. 1048, where a criminal prosecution was dismissed on motion of the accused on account of the insufficiency of the complaint, and it was held that the accused could not thereafter plead former jeopardy, because if the complaint was insufficient he was not formerly in jeopardy, and if the complaint was in fact sufficient he could not after this action on his part be allowed to say that the complaint was sufficient. I presume the real groundwork of these decisions is that the accused has invited the second trial and himself brought it about.
In Jackson v. State, 55 Wis. 589, 13 N. W. 448, fcherei were two counts in the information, one for burglary and one for larceny. The jury found the accused guilty as charged in the information. The supreme court held the evidence was insufficient to sustain the charge of burglary and that the sentence for larceny exceeded that authorized by law. This court, however, remanded the cause for a new trial upon both counts and said:
“The suggestion was made by the counsel for the plaintiff in error that his client was entitled to be discharged. We see no ground for so holding. He moved for a new trial in the court below and has obtained it here.”
The case last cited was one in which the supreme court held the evidence insufficient to sustain one of the counts in the complaint upon which the defendant had been fully tried on a valid indictment. It considered that he could be tried again notwithstanding. Are we to distinguish in the matter of jeopardy between a ruling of this kind made by the circuit *664court and the same ruling made by the supreme court? Is one in jeopardy on a charge which never was passed upon by the jury because excluded for alleged want of evidence by the trial court, but not in jeopardy, after having been fully tried thereon, if the supreme court determines that it should not hav¡e been submitted to the jury for want of evidence to sustain it ?
In People v. Schoeneth, 44 Mich. 489, 7 N. W. 70, the legal effect of an erroneous instruction to the jury is considered in a case where that instruction went to the extent of stating that the evidence was- not sufficient to warrant a conviction under a particular count. The court said:
“The instruction given to the first jury that the evidence was insufficient to convict of the breaking and entering, if ■entirely correct, was not equivalent to an acquittal of that pai*t of the charge.”
t In that case there were two counts or charges in the indictment. One wa's taken away from the jury by the instruction referred to, and upon the count submitted the jury disagreed and were discharged. The accused then moved the court that he be no further prosecuted, first, because he had been once in jeopardy upon the count withdrawn from the jury; and, second, because on the .other count on which the jury disagreed the court had no jurisdiction of the offense charged. It was ruled that the legal accusation of the first count remained just the same, and no part thereof was eliminated by the charge of the court for the purpose of another trial.
In Comm. v. Gould, 12 Gray, 171, where the court quashed an indictment after the defendant had pleaded not guilty and the jury had been impaneled to try the case, it was held that an indictment quashed justly or erroneously for misdescription is no bar to a second indictment for the same offense. In People v. Casborus, 13 Johns. 351, a like ruling was made. To the same effect is Gerard v. People, 4 Ill. 362.
Chambers v. State, 44 Tex. Crim. 61, 68 S. W. 286, is a *665case very much in point. A statute o£ Texas (art. 884 of the Penal Code) declared that the wilful taking into possession •or the removing from their accustomed range of live stock without the consent of the owner and with intent to defraud should constitute a theft. The defendant was on trial charged with theft, and the trial court erroneously instructed the jury that defendant might be convicted of driving stock from its accustomed range with intent to defraud. A new trial was granted. It was held that on such new trial the accused could be tried again for theft, that there was no acquittal of theft by the former conviction, and whatever punishment was found under the former verdict was set aside at defendant’s instigation. He was retried for theft and convicted. In that case, as in the case at bar, the defendant committed only one unlawful act. This was considered by the trial court to be an infraction of one rule of law, by the supreme court to be an infraction of another rule of law. On the second trial defendant was properly convicted for the real offense shown by the single unlawful act. See, also, 1 Bishop, New Orim. Law, §§ 998-1000.
In Perkins v. State, 78 Wis. 551, 47 N. W. 827, the accused was found guilty of manslaughter in the second degree and he brought the case to this court. Almost in the same language used by the trial court in the case at bar, the court below had said to the jury in his instructions: “I think the evidence does not tend to show that it could be manslaughter in any other degree than the first or second degree.” This took from the jury all consideration of the degrees of manslaughter below the second degree’ to the same extent as the charge in the case at bar took from the jury the question of the sufficiency of the evidence to- establish a threat to accuse of crime. There was a sufficient indictment in the Perhins Case under which the accused might have been convicted of some degree of manslaughter below the second degree, just as there is in the case at bar a sufficient indictment under *666which, the defendant might have been convicted of a threat to-acense of crime. This court was of opinion in the Perlcins-Case, as it is in the case at bar, that there was evidence to sustain the particular charge of crime so taken away from the-jury by the trial court. If Schultz was acquitted of the offense so taken away from the jury by the action of the court in the instant case, why was not Perkins also acquitted by the-similar action in Perlcins v. State, supra? If Schultz was' in the instant case in jeopardy so as to preclude the granting of a new trial for the offense so taken away from the jury by the court, why was not Perkins in jeopardy on all the degrees of manslaughter below the second degree ? In Perlcins v. State, supra> the judgment was reversed and the cause remanded for a new trial so- that Perkins might be tried in such new trial for either the second or third degrees of manslaughter; that is-to say, that Perkins might be tried for the offense so taken from the consideration of the jury by the trial court. The fact that in the one case the accused objected to- the ruling withdrawing the particular offense from the consideration of the jury, and in the other availed himself sub silentio1 of the ruling, cannot be a sufficient ground of distinction in the application of legal rules as the authorities amply show.
A similar ruling was made in Terrill v. State, 95 Wis. 276, 70 N. W. 356, and in Duthey v. State, 131 Wis. 178, 111 N. W. 222. If one accused is in jeopardy so as to prevent remanding for a new trial thereupon as to- all other offenses-covered by the indictment and supported by the evidence but erroneously taken away from the jury by instructions of the trial court, the consequences are serious indeed, and the foregoing cases are overruled by the majority opinion in the instant case. Not only that, but another mischievous precedent is added to the already too great, number of those by which the courts unnecessarily obstruct the proper administration of the criminal laws, and which tend to increase the prevailing disregard of law.
*667If in tbe discretion of this court the defendant had been discharged, or the decision of this court had remained as it-was originally written, I should have made no dissent, because I would yield to the judgment of the majority as to whether in the discretion of this court this particular defendant should be discharged or retried. But when a decision is made to be hereafter quoted as law which I consider both erroneous in law and mischievous in tendency, I feel bound to dissent. Without further discussion on this point I must submit to the lawyers and judges of the future that the error of the court below was a mere error in instructions to the jury, and that upon a new trial granted on defendant’s mo>lion after his conviction of a crime under the same indictment which was neither charged nor proven, he cannot be considered acquitted of that offense which was properly charged-; nor can he be considered as having been in jeopardy of punishment for that offense, because nothing has occurred which the law regards as equivalent to a termination of the prosecution for this offense by judgment, sentence, or acquittal nolle prosequi or discharge of the jury. The words of the constitution are, “No person shall be put twice in jeopardy for the same offense.” In this case there is no second jeopardy nor was he “put.” He elected to continue the former and only jeopardy. He asks a new trial upon the accusation found in the indictment. This means a new trial according to the law of the land, not according to blunders which have been declared not to be law.
2. Other reasons leading to the conclusion that the cause should have been remanded for a new trial under the only offense properly charged in the indictment are: (a) This prosecution is for a misdemeanor. Sec. 4380, Stats. (1898); Bouv. Law Diet. MisdemeaNOR. (b) No statute designates the offense as a felony and it is not a felony at common law. Sec. 4637, Stats. (1898), and cases in note, (e) It is within the description of sec. 3294, Stats. (1898). (d) In prosecu*668tions for misdemeanors the rule of State v. Martin, 30 Wis. 216, does not apply. Rasmussen v. State, 63 Wis. 1, 22 N. W. 835. I do1 not see how this last case can be disregarded or fairly distinguished by the majority. If it be said that Rasmussen v. State is distinguished because the statutory consequences of an appeal from justice to circuit court are to open the case for a trial de novo' as if the cause were originally commenced in circuit court and that Rasmussen by taking his appeal elected to bring about these consequences’, I answer that the statutory consequences of moving for a new trial in a criminal case are quite as well fixed by the statute cited in the next subdivision, and Schultz by moving for a new trial elected to submit to the power and discretion of the ’ court as therein declared.
3. The defendant moved for a new trial generally, and that motion was denied in the court below. This court has power to review that ruling and grant the new trial.
“The circuit court may, at the term in which the trial of any indictment or information shall be had, . . . grant a new trial ... on such terms and conditions as the court may direct. . . . When an application for a new trial under this section shall be refused a writ of error shall, on the application of the defendant, be issued from the supreme court to bring such matter before it; and upon such writ the supreme court shall have the power to review the order refusing to grant a new trial and render such judgment thereon as it may deem proper.” Sec. 4719, Stats. (1898).
Under such statute it should be held, conformably to the weight of authority and reason, that when the defendant moved for a new trial he asked for such a new trial as the court under the foregoing statute is authorized to grant; that is to say, on such terms and conditions as the circuit court might direct, or, in case that motion was denied by the circuit court and a writ of error taken to this court, “a new trial upon which this court could render such judgment as it might deem proper.” This the defendant asked for, and nothing less than *669lids should be given to bim. We have no right to presume him guilty; no right to presume that he does not desire an acquittal aiíd a vindication; no right to presume that the verdict of the jury upon the new trial will he otherwise than just and correct. If he had been acquitted by the jury upon one count in the indictment or upon one charge in the indictment, it might well be held that his motion for a new trial did not extend to the count or charge upon which he was acquitted. State v. Martin, 30 Wis. 216. But nothing of that kind occurred in the instant case. The defendant was not constrained to move for a new trial. He could have raised all the questions necessary to test the legality of his conviction upon the second charge in the indictment without a motion for a new trial. When he moved for a new trial such new trial should be granted upon the only charge in the indictment before the court. Wharton, Crim. PI. & Pr. § 518, and cases; People v. Palmer, 109 N. Y. 413, 17 N. E. 213; People v. Wheeler, 79 App. Div. 396, 79 N. Y. Supp. 454; Brown v. U. 8. 2 Ind. Terr. 582, 52 S. W. 56; State v. Sutfin, 22 W. Va. 771.
In State v. Parish, 43 Wis. 395, the court, at page 401, discussing the effect of a motion for a new trial, said:
“When a verdict of guilty in a criminal case is set aside, all the proceedings on the trial are necessarily set aside and vacated with the verdict. So; when the verdict is set aside, on motion of the accused, and he afterwards alleges that the trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved have been set aside and vacated at his request, and that he has thereby deprived himself of the means of proving his allegation of jeopardy.”
Here, again, Jackson v. State, 55 Wis. 589, 13 N. W. 448, seems to me directly in point.
There is a broad ground of distinction between the rule of State v. Martin, 30 Wis. 216, and the instant case in this respect. An indictment for wilful murder under our statute *670is, for the purposes of this question, equivalent to an indictment containing counts for each of the statutory degrees of homicide, either murder or manslaughter, because the jury, generally speaking, may find the defendant guilty of any such species of homicide which the evidence tends to establish. Where the whole case is submitted to the jury and they find him guilty of one of the lower degrees of homicide, it can with great reason be held that the defendant was thereby acquitted of all the higher degrees of homicide by the verdict of the jury. This rule, however, has been abrogated by statute in several states and should not be extended. The instant case attempts to extend this rule so as to include a mere misdirection of the court below with respect to what the evidence tends to prove, and holds such misdirection equivalent to an acquittal and not subject to correction upon a new trial. I think this conflicts with the statute relative to new trials hereinbefore quoted and with cases in this court and elsewhere cited to another proposition in the first-numbered subdivision of this opinion. Under such conditions this court should apply the rule of State v. Comm’rs, 3 Hill (S. C.) 239; that is to say, the case should stand as though it never had been tried, and the defendant should be held to have obtained a new trial on the implied understanding that the whole case should go back and be tried on its merits. To the same effect axe State v. Stanton, 1 Ired. Law (23 N. C.) 424, and Lesslie v. State, 18 Ohio St. 390. This disposition of the case is in my opinion also authorized by the following cases in this state: Perkins v. State, 78 Wis. 551, 47 N. W. 827; Terrill v. State, 95 Wis. 276, 70 N. W. 356; Duthey v. State, 131 Wis. 178, 111 N. W. 222; State v. Parrish, 43 Wis. 395; Von Pueden v. State, 96 Wis. 671, 71 N. W. 1048; In re Keenan, 7 Wis. 695; Jackson v. State, 55 Wis. 589, 13 N. W. 448.
On the three grounds above stated I therefore submit that the third question submitted for reargument should have *671been answered in tbe negative; that is to- say, tbe defendant "was not in jeopardy as to tbe first charge in tbe indictment so as to preclude a new trial as to sucb charge.