dissenting.
I respectfully dissent. I am of the opinion that the majority decision is in collision with Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and that giving the jury instruction in question in this case deprived the petitioner of his right to due process of law.
I.
With the exception of the introductory clause, “When there are no circumstances to prevent or rebut the presumption,” and the substitution of the words, “deliberate acts,” for the words, “voluntary acts,” the instruction condemned in Sandstrom and the instruction here are virtually the same.1 The majority relies on the introductory clause and the word, “deliberate,” to decide that reasonable jurors could not conclude that the element of intent was to be presumed or that it fell to the defendant to disprove the existence of intent to kill. That reliance is misplaced.
Rather than being crucial qualifying language that saves the instruction from an unconstitutional impact, the prefatory language, “When there are no circumstances to prevent or rebut ...” condemns the instruction and makes possible the untenable interpretation that the defendant must disprove intent. The common meaning and understanding of the word, “rebut,” is “refute” or “disprove.” Webster’s New Collegiate Dictionary 963 (1977). The jury was not instructed that the existence of the basic facts did not automatically trigger the presumption and require the defendant to rebut it. The jury was left to its own speculations on that point. See also Ulster County Court v. Allen, 442 U.S. 140, 158-59 n. 16, 99 S.Ct. 2213, 2226 n. 16, 60 L.Ed.2d 777 (1979).
The reference to the consequences of “deliberate acts” is offset by the second sentence in the challenged instruction which, in explaining what basic facts lead to the presumed fact, makes no effort to distinguish between deliberate and voluntary acts. Moreover, no definition of “deliberate” was given to the jury and no attempt was made by the trial judge to distinguish between voluntary acts and deliberate acts as is done in the majority opinion. See Petitioner’s Appendix at 130-53 (trial court’s charge).2
*698If the fatal flaw in the Sandstrom instruction, as the majority reasons, was the failure to tell the jury how the instruction was to be rebutted, then how was that flaw remedied here? There is nothing, not a word of explanation, in the trial court’s charge as to how the presumption of intent is to be rebutted or how it could satisfy the State’s burden of proving the element of intent. Compare that to the instructions on the presumption of possession in Ulster County Court v. Allen, 442 U.S. 140, 160-61 nn.19, 20, 99 S.Ct. 2213, 2226-27 nn.19, 20 (1979) where the trial judge meticulously explained the use and effect of the presumption and also told the jury, “The presumption ... need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case.” In Ulster the balance of instructions made clear that the challenged instruction raised a permissive inference that the jury could accept or reject as it saw fit. That is not the case here.
In this case the instructions viewed overall outline the two elements of attempted murder under Wisconsin law. First, that the defendant intended to kill, and, second, that the defendant committed acts which demonstrate unequivocally that he would have killed except for the intervention of other factors. The instructions say that the State must prove each of the elements but then say that the first element of intent is proved from circumstances and that the law presumes intent from certain circumstances unless the presumption is rebutted. Since the common meaning of rebut is to refute or disprove, a possible interpretation jurors could draw is that the law required intent to be presumed from the circumstances of the shooting and that the burden fell upon the defendant to disprove intent. See Sandstrom v. Montana, 442 U.S. at 518 n.7, 99 S.Ct. at 2456 n.7.
The question whether a defendant has been accorded his constitutional rights depends upon the way in which reasonable jurors could have interpreted the instruction. Id. at 514, 99 S.Ct. at 2454.
The majority says, and I am sure that it is true, that whether reasonable jurors would interpret the challenged instruction as raising a permissive inference is a federal question, and the decision of the Wisconsin Supreme Court in Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980) that the instruction states a mandatory presumption is not binding on this court.
In determining the possible interpretation jurors might afford the presumption, it is incongruous to overlook conflicting decisions of courts that have considered the instruction. See also id. at 517, 99 S.Ct. at 2455.
The Supreme Court of Wisconsin is divided on the question as are the appellate courts of that state. See Muller v. State, 94 Wis.2d 450 at 478, 289 N.W.2d 570 at 584 (1980) (Abrahamson, J. dissenting). The instruction has been held unconstitutional and in conflict with Sandstrom in Drinkwater v. Gagnon, 521 F.Supp. 1309 (E.D.Wis.1981); Austin v. Israel, 516 F.Supp. 461 (E.D.Wis.1981); Boyer v. Israel, 515 F.Supp. 1369 (E.D.Wis.1981); Harris v. Israel, 515 F.Supp. 568 (E.D.Wis.1981). The instruction has been held constitutional and not in conflict with Sandstrom in Hoppe v. Israel, 516 F.Supp. 965 (E.D.Wis.1981); Shumate v. Milwaukee County Circuit Court, 515 F.Supp. 723 (E.D.Wis.1981). The judges of the Wisconsin courts cannot agree unanimously as to the effect of the challenged instruction, neither can the federal district judges of the Eastern District of Wisconsin. How then will twelve lay persons, most if not all of whom are having their initial experience with the law, arrive at a unanimous and constitutionally acceptable interpretation of the instruction?
II.
If the presumption here is like that in Sandstrom and could reasonably be inter*699preted as shifting the burden of persuasion on an element of the case, then it should not be necessary to evaluate the rational connection between the basic facts and the elemental fact. See generally Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). But see Ulster County Court v. Allen, 442 U.S. 140, 166-67, 99 S.Ct. 2213, 2229, 60 L.Ed.2d 777 (1979). However, it should be pointed out that the statement in the majority decision on the rational connection that, “the jury was not told that it could infer intent to kill from acts which were not deliberate,” is open to debate. The second sentence of the challenged instruction, as has already been noted, refers to specific acts which would support the presumption without denominating those acts as deliberate or voluntary.
Nor can I agree that the majority decision is in accord with Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1980), cert. denied, 50 U.S.L.W. 3533 (January 12, 1982).
The challenged instruction in Jacks, 651 F.2d at 491 (Appendix C), has significant differences from the challenged instruction in this case. The Jacks instruction did not use the language used here concerning the rebuttal of the presumption of intent which could have effectively shifted the burden of proof to the defendant on the issue of intent. Jacks did not involve the confusion of deliberate acts as opposed to voluntary acts which is found in the Pigee instruction.
Finally, I would observe that we are dealing with the fundamental concept that due process protects a defendant against conviction except upon proof by the government beyond a reasonable doubt of every element of the crime with which he is charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Where there is rational foundation to the possibility that due process has been denied, as there is here, we should insist on strict adherence to the concept.
I would reverse and grant the writ.
. The jury in Sandstrom was instructed, “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” Sandstrom v. Montana, 442 U.S. at 513, 99 S.Ct. at 2453. The jury in Pigee was instructed, “When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all the natural probable and usual consequences of his deliberate acts. If one person assaults another violently with a dangerous weapon, likely to kill, then when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended.” Petitioner’s Appendix at 135-36.
. The “deliberate” character of the act has no bearing on the effect to be given the evidentiary device but goes only to the rational connection test. Sandstrom v. Montana, 442 U.S. at 512 n.1, 99 S.Ct. at 2453 n.1 (Montana defined “deliberate homicide” as criminal homicide *698committed “purposefully or knowingly.”); Muller v. State, 94 Wis.2d 450 at 478 n.1, 289 N.W.2d 570 at 584 n.1 (1980) (“There is also no distinction between the meaning of the words ‘deliberate’ and ‘voluntary’ in the context of this presumption.”) (Abrahamson, J. dissenting).