{concurring). I concur with the result. While I agree with the majority’s conclusion that the evidence in this case was insufficient to warrant giving the manslaughter instruction to the jury, I disagree with the interpretation which the majority gives to the manslaugh*14ter statute, which changes the clear and plain meaning of that statute.
Criminal offenses in Wisconsin are governed solely by statute; there are no common law crimes.1 In State v. Genova, 77 Wis. 2d 141, 145, 252 N.W.2d 380 (1977), this court stated :
“Common law crimes were abolished in Wisconsin in the 1955 Criminal Code. Sec. 939.10, Stats. We must look to the Wisconsin legislature’s definition of a crime, not the common-law definition.”
Section 940.05(1), Stats. 1979-80, defines manslaughter as follows:
“940.05 Manslaughter. Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:
“(1) Without intent to kill and while in the heat of passion. . . . (Emphasis added.)
“Without intent” are the key words. This state does not recognize provocation as an excuse or justification for the intentional killing of another human being. The majority opinion points to the inconsistency between the statute and the “standard jury instruction” and then decides to follow the jury instruction. Jury instructions are drafted by a panel of judges. Statutes are enacted by the legislature. I believe it’s elemental law that when there is an inconsistency between a statute and a jury instruction it is the statute that controls.
The manslaughter instruction given in this case has worked to the benefit of defendants because of its inclusion of first-degree murder in its definition.
“Before the defendant may be found guilty of manslaughter while in the heat of passion, you must be sat*15isfied by the evidence beyond a reasonable doubt that there were present all of the elements of either first degree murder or of second degree murder as I have defined them to you, except that you find that the defendant killed .... while in the heat of passion caused by a reasonable, adequate provocation, or you have a reasonable doubt thereof.”
The instruction ought to be changed to eliminate any reference to first-degree murder. It properly contains the elements of second-degree murder.
The difference is that whereas in second degree murder the conduct that is “imminently dangerous” springs from within the individual, in manslaughter-heat-of-passion that same conduct is caused by outside influences that cause the individual to conduct himself in the proscribed manner resulting in the death of another without the intent to kill. If such provocation results in intent to kill, then it becomes murder in the first degree.
The legislature has recognized this distinction. First-degree murder carries a penalty of life imprisonment. Second-degree murder is punishable by a maximum of twenty years imprisonment, while manslaughter-heat-of-passion carries a maximum penalty of ten-years imprisonment.
The majority relies in part for its conclusions on the concurring opinion by the late Chief Justice Horace W. Wilkie in State v. Hoyt, 21 Wis. 2d 284, 304, 128 N.W.2d 645 (1964), in which he said that “intent” should be recognized as an element of manslaughter. However, he also said in that concurrence: “I would adopt the Model Penal Code formulation as the test of provocation under sec. 940.05(1), Stats.” He then sets forth that formulation as follows:
“Under the Model Penal Code, a homicide which would be ordinarily first or second-degree murder will be deemed manslaughter if ‘committed under the influence of extreme mental or emotional disturbance for which *16there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.’ ”
That was not and is not the conclusion adopted by the majority in the Hoyt case or in the case at bar.
Unlike other states, Wisconsin does not recognize an intentional killing as manslaughter. Intentional killing is first-degree murder.
The majority opinion does not cite a single Wisconsin case that says that “intent” is an element of “manslaughter-heat of passion.” The closest it comes is the reference to first-degree murder in the manslaughter instruction cited above.
An erroneous instruction should not be placed above the clear meaning of the statute. If Wisconsin wishes to change its law in this respect it should be done by the legislature and not by this court following a faulty jury instruction instead of the plain meaning of the statute. “Without intent to kill” means just that.
I am authorized to state that Justice William G. Callow joins in this concurring opinion.
“939.10 Common-law crimes abolished; common-law rules preserved. Common-law crimes are abolished. The common-law rules of criminal law not in conflict with chs. 939 to 948 are preserved.”