(on rehearing). The opinion of the court, filed October 29, 1963, is hereby withdrawn. The following opinion is substituted in its place.2
William Hoyt died at his home between ”6 and 7 p. m., May 28, 1962. He had been shot by his own revolver, then in the hand of his wife, Dona Hoyt. She was charged with second-degree murder, and convicted.
At the trial, Mrs. Hoyt requested that the jury be instructed with respect to manslaughter and that an appropriate form of verdict be submitted. She objected to receipt in evidence of a written confession. She objected to testimony of police officers of their observations within her home after the shooting. She contends that the court erred in refusing to submit a manslaughter verdict, in permitting the confession to go before the jury, and in permitting the officers to testify about what they observed in her home.
1. Submission of a manslaughter verdict. Mrs. Hoyt was twenty-nine years of age. Her husband was 6 feet, 3)4 inches tall and weighed 235 pounds. Dona was 5 feet, 6)4 inches tall and weighed 130 pounds. They had been married for eight years, and had one son, Russell, aged seven. Mrs. Hoyt testified to an unhappy married life, and to frequent incidents where Mr. Hoyt beat or choked her and humiliated her in various ways. A number of these incidents of violence and humiliation were corroborated or described by apparently disinterested witnesses as well as Mrs. Hoyt’s parents. On the afternoon preceding the killing, she had gone to a tavern to pick up Mr. Hoyt, and he said several things to her and to others present which need not be repeated here, but were humiliating and insulting.
*288They returned to their home, and the events which occurred- there are described only by Mrs. Hoyt. After eating something, both were in the living room. Mr. Hoyt was lying on the daVenport, and Mrs. Hoyt sat on the edge of it to talk to him. She asked him whether they couldn’t live some other kind of life. He said she could live any kind she wanted, and that he would sell the house, take their son and leave town. He pushed her off the davenport with his legs. Then he got up and pushed her head toward the floor with his hand. Then he stretched out on the floor. She got on her knees, bending over him, and spoke to him. He put his hand on her face and pushed her back so that she fell.
She testified:
“A. I got on my knees to him, just bending over him and I said ‘Bill, why don’t you go to bed now,’ I said. And he said ‘Why don’t you go to Hell,’ and he put his hand on my face and pushed me back.
“Well, when he did this I just lost my balance and I ended up away from him, you know, I just fell this way. And then I got up and walked out into the hall and I just wanted to get out of the room and I just felt like I wasn’t there— well, it was real foggy, like you can’t even look out of the side of your eyes, or something. And I walked into the hall, and, well, I just was afraid to be in there, I didn’t know what to do. I couldn’t go in the kitchen because he was there and so he could see, and I was afraid he would come after me if I went in the kitchen. And when I was thinking this — I was already past this bedroom, and so I turned into Rusty’s room — it was on the side of me and I just turned in and I walked in Rusty’s room and I was standing there and I was just staring straight ahead as I walked in. And I saw the door open, it has a mirror on it, and I took my hand and I was going to close the door, and I looked up and my eyes saw this gun. I don’t feel like I even reached for it, it just seemed like I was drew to touch that gun and — I mean, in a fog, I wasn’t thinking, I wasn’t planning, I wasn’t doing anything.
*289“I just reached this gun and I had it in my hands and some leather covering of some sort fell down and I was looking at this gun in my hands, and I was just foggy and I was staring at this gun. And I walked out two steps, I think it was, and I’m out of this room and I was in the hall, and as soon as I realized I was in the hall and I had that gun I quick put it in back of me. And I heard a little noise outside and I walked, turned, — the hall is so small — I turned to the living room and Bill could see me and I was standing with my hands behind my back. And he said ‘Have you got a knife — cut me. You got my gun?’ And when he said ‘gun’ I just didn’t say anything, and he was coming at me and I put the gun in front and he laid back down and he said ‘Shoot, it’s not loaded — shoot.’
“And I just was froze there, and I was standing there and he said ‘What’s the matter, what’s the matter now,’ he said ‘come on, Bitch,’ he said ‘come on,’ he said, ‘shoot,’ he said ‘come on, you bitch, shoot.’ And I said ‘quiet,’ and he said ‘shoot, I don’t care, I don’t care about you, I don’t care about kids, I don’t care about anything, shoot, shoot, shoot, shoot, shoot!’ And his face came at me and it was all red and contorted and I stepped back and it shot, and it was dull, and I thought ‘What is that?’ and I saw Bill, and at first it looked like he was mad again, but then his face crumpled and I laid'down and I said ‘Bill, Bill, Oh, Bill!’ ”
After the shooting she called the police, but hung up before saying anything, apparently because she did not want her parents and son to learn about it that way. She took her son, who had been outside, and drove to her parents’ home. Her mother testified that Mrs. Hoyt came to the door and asked her to promise to take care of Russell; that she must have been in a complete state of shock, staring, with her eyes wide open. The parents surmised there must have been another quarrel, but had some difficulty in finding out what had happened. When they finally learned that Mr. Hoyt had been shot, Mrs. Hoyt indicated she wanted to go back and shoot herself. She did not remember pulling the trigger, *290but remembered having the gun in her. hand and shaking, and Mr. Hoyt telling her to go ahead and shoot. She told her mother of the argument and humiliation that afternoon in the tavern.
Mrs. Hoyt’s parents called the police.
In not charging Mrs. Hoyt with first-degree murder, the state apparently conceded that her state of mind was such that she lacked “intent to kill” (mental purpose to take the life of another) .3 She was guilty of second-degree murder if she caused her husband’s death “by conduct . . . evincing a depraved mind, regardless of human life.” 4 She contends that, under the evidence, a jury could have entertained a reasonable doubt but that she caused his death “Without intent to kill and while in the heat of passion,” the specification for one type of manslaughter.5
“That which will constitute ‘the heat of passion’ which will reduce what would otherwise be murder to manslaughter ‘is such mental disturbance,. caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.’ State v. Stortecky (1956), 273 Wis. 362, 372, 77 N. W. (2d) 721. It has been said that ‘ “the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.” ’ 21 Am. *291& Eng. Ency. of Law (2d ed.), p. 177, quoted in Johnson v. State (1906), 129 Wis. 146, 159, 108 N. W. 55.” 6
We have recently said:
“Thus, with respect to provocation, the test applied is not the subjective one of whether it was sufficient to produce in defendant such passion as to cause him to kill without intent to do so. Rather it is the objective one of whether the provocation would have caused such state of mind in persons ordinarily constituted.” 7
If Mrs. Hoyt’s testimony be believed, it could readily be found that her acts resulted from an emotional or mental disturbance produced by her husband’s provocative conduct. In terms of the standards for heat-of-passion manslaughter, the question would remain whether the provocation offered would be sufficient in character and degree to cause the same result in an ordinarily constituted person.
If we look solely at the action of Mr. Hoyt in the last few minutes before the shooting, it seems clear that such actions would not be sufficient to produce the required degree of disturbance in an ordinarily constituted person not previously subjected to the treatment visited upon Mrs. Hoyt by her husband and disclosed by the record. On the other hand, it seems reasonable that the treatment to which Mrs. Hoyt had been subjected for a long period of time, and the public humiliation of her within the previous hour would have a cumulative effect upon any ordinary person so that the provocation just before the shooting would be greatly magnified.
Under the peculiar circumstances of this case, we conclude that a jury might properly have found her guilty of heat-of-*292passion manslaughter and entertained a reasonable doubt of her guilt of second-degree murder, and that the manslaughter verdict should have been submitted.
2. The written confession. A three-page statement, written and signed by Dona Hoyt, was presented by the state. The court heard testimony, in the absence of the jury, concerning the circumstances under which it was prepared, and concluded that it had not been clearly shown to be testi-monially untrustworthy. Virtually the same testimony was then produced before the jury; the statement was received in evidence; and the jury was instructed to consider the statement only if satisfied beyond a reasonable doubt that it was freely and voluntarily made.
Police officers picked up Mrs. Hoyt at her parents’ home. She made no statements on the way to headquarters, and reached there about 8:45 p. m. Some time was consumed in identification processes, and she was questioned from 10:15 until nearly midnight. Although Officer Obst testified that she was unwilling to answer certain questions, and did not admit or deny shooting her husband, it is apparent that she related many of the facts to him during that period.
Around midnight, she was permitted to talk with her parents. They told her she should co-operate with the police, and she asked her father to obtain a lawyer. After her parents left, she was interviewed by Sergeant Hagopian and she evidently told him her complete version of events. She refused, however, to make a statement in the presence of a stenographer and asked Hagopian to telephone her father. She talked with her father about 1:30 a. m. and he told her not to sign anything until he could contact an attorney. Through a friend, he got in touch with Attorney Raskin, and then conveyed Mr. Raskin’s advice to Mrs. Hoyt and Sergeant Hagopian. Mrs. Hoyt and her father both testified that he advised Mrs. Hoyt not to sign anything. Sergeant Hagopian conceded only that she had been advised against *293making a statement with a stenographer present, and drew a distinction between that, which he referred to as a “formal” statement, and a statement written out and signed by her.
About 3 :10 a. m., she began writing a statement and completed it at about 4:15 or 4:30. The statement differs from her testimony at trial in very few respects.
There is some difference between the testimony of Mrs. Hoyt and of Sergeant Hagopian with reference to the circumstances under which the statement was given.
Mrs. Hoyt testified that Sergeant Hagopian told her that without a written statement the district attorney would charge first-degree murder, but if she co-operated the police would recommend second-degree murder or manslaughter; that her lawyer did not realize all the facts and that if the lawyer were there Sergeant Hagopian was sure the lawyer would agree that she should sign; that, another officer indicated the next shift would be taking over and that if she did not sign, she would not get any sleep; that she told Sergeant Hagopian she was sick at her stomach. Her written statement concluded: “If I’ve left out anything its because I’m so tired and sick.” She conceded there was no mistreatment, she was permitted to smoke, and was offered food.
Sergeant Hagopian denied saying she would be charged with murder in the first degree if she did not sign and second degree if she did. With respect to illness, he conceded only that she said she had a slight headache. Although he testified she told him she would be willing to write a statement, he admitted that he had asked her to do so three or four times. He did tell her her case would be presented to the district attorney, but he denied referring to first or second-degree murder or manslaughter.
It is evident from the testimony of both that she wrote the statement very slowly, and paused frequently.
As we read the recent decisions of the supreme court of the United States in this area, the constitutional question is *294broader than whether a defendant’s statement in response to police request was so much the product of coercion as to be untrustworthy.8 For other reasons of policy, voluntariness, in this context, must include a considerable deliberateness of choice.9 The court has recognized a distinction between the search for information in the process of investigation and the creation of written or otherwise recorded evidence for use against the accused upon his trial.10 In the latter situation, the supreme court particularly insists that deliberateness of choice must appear in order to save the statement from constitutional taint.11 Thus the supreme court appears to approach a concept that an accused has a constitutional privilege against providing evidence against himself in advance of trial.
Upon review of the record, we hold that the writing of the statement was not Mrs. Hoyt’s free and deliberate choice. Although all the circumstances have been considered, two propositions seem to us of special weight. One is the very high probability that the lateness of the hour and the prospect of being deprived of sleep were important factors in *295inducing her to make the statement after repeatedly refusing to do so. Even more important is the fact that her change of mind was produced by repeated requests of the police officer in disregard of the advice of her attorney. Whatever the exact words in which such advice was communicated to her and to Sergeant Hagopian, the distinction he drew between making a “formal” statement and writing out a statement is not impressive.
The court of appeals of New York has recently held that the law of that state requires “the exclusion of a confession taken from a defendant, during a period of- detention, after his attorney had requested and been denied access to him.” 12 We need not decide that exact question here. It is conceivable that Mrs. Hoyt could have made a free and deliberate decision to disregard her attorney’s advice, but upon this record the state has shown no reasonable basis for concluding that she did so.
Upon the record made in an attempt to lay a foundation, the confession should have been excluded.
3. The search. Mrs. Hoyt’s mother telephoned the police and reported that there had been a shooting at the Hoyt home. A police ambulance squad was sent to that address. The officers rang the front and rear doorbells, but received no answer. Through a window they saw what appeared to be a body on the living room floor. They opened the rear door, which was unlocked, and asked if anybody was home. They went through the kitchen and hallway and saw Mr. Hoyt’s body. At this point in the testimony of one officer, defense counsel objected to the testimony because the officers entered without consent or a warrant, and no facts had been shown to permit entry without a warrant.
The court overruled the objection because it was untimely and because there was a situation justifying entry.
*296The officer then ■ described his observations of the body, the gun lying near it, and the rooms, his call to headquarters, the taking of pictures, and the removal of the body. The gun and pictures were later received in evidence, most of them without objection.
It may well be that the court’s ruling could be sustained solely on the ground that the objection was untimely. Sec. 955.09 (3), Stats., provides:
“Defenses and objections based on . . . the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. But the court may, in its discretion, entertain such motion at a later stage of the trial, in which case the defendant waives any jeopardy that may have attached. A motion to suppress evidence shall be so entertained, with waiver of jeopardy, when it appears that defendant is surprised by the state’s possession of such evidence.”
In any event we conclude that the court’s ruling was proper on the second ground specified. The Fourth amendment to the constitution of the United States and sec. 11, art. I of the constitution of Wisconsin guarantee security of houses “against unreasonable searches and seizures.” The officers had received information of a shooting at this address. They were able to see a body on the floor within. No one answered their rings. Under these circumstances it was their duty to enter at least for the purpose of determining whether the body was alive or dead, and to render assistance if alive.
It has been recognized, sometimes in dictum, that emergency situations may present compelling reasons for an immediate search without warrant, which may nevertheless be reasonable.13 A search incident to arrest is the most *297commonly recognized instance of a reasonable search without a search warrant.14
In the instant case the purpose of assisting the victim if still alive supplied a compelling reason for immediate entry, quite apart from the purpose of prosecuting for crime. In civil cases where a fireman or policeman attempts recovery for being injured upon private property in the course of performing a duty, he is held not to be a trespasser.15 Where a conflagration is raging, a person may lawfully enter upon another’s premises in order to save others, and he is not regarded as a trespasser.16 In other situations necessity, especially in the interest of preservation of human life, will legally excuse or justify trespass.17
We conclude that in the present case the officers lawfully entered the home and their observations incidental to lawful entry did not constitute an unreasonable search.
It appears that ultimately they made a complete search of the house and the state argues that this was also reasonable because of the possible presence of the person who had done the shooting or of some other victim. The reasonableness of the complete search need not be determined, however, because the evidence offered, except for four photographs, consisted only of the gun which was found near the body and of pictures of the areas which the officers observed while going to the body. The four photographs referred to depicted two *298other rooms, but defense counsel offered no objection to them.
If, on the new trial, other evidence be offered, the question will be open for determination whether the objection has been waived under sec. 955.09 (3), Stats., or whether the search which led to the offered evidence exceeded legitimate bounds.
We confirm our original mandate, reversing the judgment. There is to be a new trial consistent with this opinion.
The concurring opinion written by Mr. Justice Gordon and joined in by Mr. Justice Hallows has not been withdrawn. See post, p. 317v.
Sec. 940.01, Stats.
Sec. 940.02, Stats.
Sec. 940.05 (1), Stats.
Zenou v. State (1958), 4 Wis. (2d) 655, 666, 91 N. W. (2d) 208.
Brook v. State (1963), 21 Wis. (2d) 32, 42, 123 N. W. (2d) 535.
Rogers v. Richmond (1961), 365 U. S. 534, 540, 81 Sup. Ct. 735, 5 L. Ed. (2d) 760; Blackburn v. Alabama (1960), 361 U. S. 199, 206, 80 Sup. Ct. 274, 4 L. Ed. (2d) 242; Spano v. New York (1959), 360 U. S. 315, 320, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.
Haynes v. Washington (1963), 373 U. S. 503, 83 Sup. Ct. 1336, 10 L. Ed. (2d) 513; Townsend v. Sain (1963), 372 U. S. 293, 307, 83 Sup. Ct. 745, 9 L. Ed. (2d) 770; Lynumn v. Illinois (1963), 372 U. S. 528, 534, 83 Sup. Ct. 917, 9 L. Ed. (2d) 922; Shotwell Mfg. Co. v. United States (1963), 371 U. S. 341, 347, 83 Sup. Ct. 448, 9 L. Ed. (2d) 357; Gallegos v. Colorado (1962), 370 U. S. 49, 82 Sup. Ct. 1209, 8 L. Ed. (2d) 325; Culombe v. Connecticut (1961), 367 U. S. 568, 81 Sup. Ct. 1860, 6 L. Ed. (2d) 1037; Reck v. Pate (1961), 367 U. S. 433, 440, 81 Sup. Ct. 1541, 6 L. Ed. (2d) 948; Rogers v. Richmond, supra, footnote 8; Blackburn v. Alabama, supra, footnote 8; Spano v. New York, supra, footnote 8.
Haynes v. Washington, supra, p. 515, footnote 9; Culombe v. Connecticut, supra, footnote 9.
Spano v. New York, supra, p. 323, footnote 8.
People v. Donovan (1963), 13 N. Y. (2d) 148, 193 N. E. (2d) 628. 629.
Carroll v. United States (1925), 267 U. S. 132, 45 Sup. Ct. 280, 69 L. Ed. 543; Johnson v. United States (1948), 333 U. S. 10, 68 Sup. Ct. 367, 92 L. Ed. 436; Steeber v. United States (10th Cir. 1952), 198 Fed. (2d) 615, 33 A. L. R. (2d) 1425; District of *297Columbia v. Little (D. C. App. 1949), 178 Fed. (2d) 13, 13 A. L. R. (2d) 954; Ellison v. State (Alaska, 1963), 383 Pac. (2d) 716, 720; Eisentrager v. State (Nev. 1963), 378 Pac. (2d) 526.
United States v. Rabinovitz (1950), 339 U. S. 56, 60, 70 Sup. Ct. 430, 94 L. Ed. 653.
Anno. Policeman or Fireman—Injury, 86 A. L. R. (2d) 1205; Anderson v. Cinnamon (1955), 365 Mo. 304, 282 S. W. (2d) 445; Krauth v. Getter (1960), 31 N. J. 270, 157 Atl. (2d) 129; Burroughs Adding Machine Co. v. Fryar (1915), 132 Tenn. 612, 179 S. W. 127.
22 Am. Jur., Fires, p. 630, sec. 53.
52 Am. Jur., Trespass, p. 867, sec. 40.