(dissenting). I dissent on two grounds: The jury instruction concerning the presumption of intent in this case contravenes sec. 903.08 (3), Rules of Evidence, the state constitution and the federal constitution as interpreted in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979). The trial court erred in failing to give an instruction on manslaughter.
L
The majority appears to concede that that part of the jury instruction which states:
“The law presumes that a reasonable person intends all the natural, probable, and usual consequences of his deliberate acts.”
is substantially similar to the Montana jury instruction found unconstitutional in Sandstrom: “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.”1
*479The majority appears to think that the phrase in the Wisconsin jury instructions that “when there are no circumstances to prevent or to rebut the presumption,” a phrase which is not in the Sandstrom instruction, distinguishes the Wisconsin’s instruction from the Sand-strom instruction and renders Wisconsin’s jury instruction constitutional.
The majority recognizes that if the jury instruction in the case at bar could be interpreted by a reasonable juror as either a conclusive presumption or as a rebuttable presumption which shifts the burden of persuasion to the defendant, the instruction would violate the right to due process. The litmus paper test set forth in Sandstrom is not how judges interpret the instruction, but how a “reasonable juror could have interpreted the instruction.” Sandstrom, 442 U.S. at 514, 99 S. Ct. at 2454.
The majority holds that the “jury instruction in this case states a rebuttable presumption”2 which is a species of “mandatory presumption” (in the Sandstrom and Ulster County Court v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 2225 (1979) terminology) and which “requires that a trier of fact must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumption.” (Emphasis is in the majority opinion.) The majority concludes that the instruction “is not the kind of rebut-table presumption which would shift the burden of persuasion to the defendant on the intent element of the crime and no reasonable juror could interpret it as such.”
The majority says that the instruction does not state a permissive presumption (which “places no burden of any kind on the defendant,”) or a conclusive presumption (an *480irrebuttable presumption). The majority opinion says that “the language [of the instruction] clearly tells the jury that the presumption may be rebutted or prevented by any evidence. . . . [The language of the instruction] does not require the defendant to come forward with an amount of proof greater than ‘some’ evidence.”
No Wisconsin appellate judge or federal district court judge who has reviewed the presumption instruction has adopted the interpretation of the instruction which is adopted in the majority opinion. In Genova v. State, 91 Wis.2d 595, 283 N.W.2d 483 (Ct. App. 1979), the court of appeals concluded that an instruction similar to the one in issue in this case states a permissive presumption under Wisconsin law and that no reasonable juror could interpret the language otherwise.3 In Adams v. State, 92 *481Wis.2d 875, 887, 289 N.W.2d 318 (Ct. App. 1979), the court of appeals determined that a reasonable juror could have interpreted the instruction as a mandatory rebut-table presumption which shifted “the burden of persuasion” to the defendant. The court concluded in Adams that the instruction was unconstitutional.4 The United *482States District Court for the Eastern District of Wisconsin also declared the instruction unconstitutional holding that a reasonable juror could interpret it as shifting the burden of persuasion. Dreske v. Wisconsin Department of Health & Social Services, 483 F. Supp. 783 (D. C. Wis. 1980).5
A.
Because the majority concludes that the instruction creates a mandatory and rebuttable presumption, which shifts to the defendant the burden of producing evidence to rebut or prevent the presumption, the instruction violates sec. 903.03(3), Rules of Evidence.
Under sec. 903.03(3) proof of a basic fact or facts in a criminal case permits, but does not require, the jury to infer the “presumed” fact or facts. Sec. 903.03(3) requires the trial court to instruct the jury that the “presumption” is not mandatory but is permissive.
Sec. 903.03(3), Rules of Evidence, provides:
“(3) Instructing the jury. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.”
*483See Lofton v. State, 83 Wis.2d 472, 493, 266 N.W.2d 576 (1978) (Abrahamson, J., concurring opinion); Johnson v. State, 85 Wis.2d 22, 35, 270 N.W.2d 153 (1978) (Abrahamson, J., concurring opinion); and Genova v. State, 91 Wis.2d 595, 620, 283 N.W.2d 483 (Ct. App. 1979).
Although I could rest my dissent on this state statutory ground alone, I do not, because I believe that the majority opinion erred in concluding that the instruction passes constitutional muster. I submit that it is commonly recognized that “presumption is the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof’ ” ;6 that the law uses the word “presumption” in many different ways ;7 that reasonable judges have not agreed as to the reasonable interpretation of the Wisconsin jury instruction in issue; and that a reasonable juror could have interpreted the instruction in issue, which is substantially similar to the Sandstrom *484instruction, as shifting the burden of persuasion to the defendant.
B.
The majority rests its holding that the instruction is constitutional on two grounds: First, that the instruction “does not require the defendant to come forward with an amount of proof greater than ‘some’ evidence,” and second, that “[s]ince the instruction specifically states: ‘When there are no circumstances . . .’ no reasonable juror could interpret it as shifting the burden of persuasion to the defendant.” Both grounds are, in my opinion, fallacious. The conclusion reached by the majority that the instruction is constitutional is also, in my opinion, erroneous.
The majority concedes that the jury must find the presumed intent upon proof of the basic fact, unless the defendant comes forth with “some evidence.” Although the majority opinion is silent as to what evidence constitutes “some evidence” required to rebut the presumption, the implication is that not much evidence is necessary. However the law of this state appears to be otherwise. This court, as early as 1904, said that the defendant has the burden of producing evidence which is “at least sufficiently convincing to raise a reasonable doubt” as to the defendant’s intent.
In Cupps v. State, 120 Wis. 504, 513, 97 N.W. 210 (1904), which was quoted with approval in Smith v. State, 69 Wis.2d 297, 303, 230 N.W.2d 858 (1975), this court said:
“When it is made to appear in the prosecution of a case like this that the accused fired the shot, the weapon being aimed at a vital part of the body, and that death ensued as a natural and probable result, the presumption of fact as to intention to take human life, in the absence *485of any explanatory circumstance or evidence, makes a prima facie case for the prosecution. The state is not hound to go further and negative any probability that the occurrence was the result of accident, or that there were circumstances reducing the homicide below that of murder in the first degree, or excusing or justifying it altogether. The accused at that point must take up the burden of rebutting the prima facie showing made against him. He must show, by evidence at least sufficiently convincing to raise a reasonable doubt as to the intention to take human life or as to whether such taking was justifiable or excusable, that there was no such intention, justification or excuse, or the jury will be justified in finding him guilty of the highest offense of criminal homicide. That rule is elementary.”
There is dicta in Sandstrom, 442 U.S. at 518, 99 S. Ct. at 2457, that indicates that there might exist a mandatory presumption that would be, by its terms, rebuttable by such a slight quantum of evidence that it would merely shift what is called the “burden of production” of evidence and not the burden of “persuasion” and therefore not violate due process guarantees. However, the United States Supreme Court in Sandstrom expressly declined to consider the kind of constitutional analysis which would be appropriate for presumptions other than the conclusive presumption and the mandatory rebuttable presumption which shifts the burden of persuasion. Sandstrom, 442 U.S. at 518, 99 S. Ct. at 2457, fn. 8. See also, Ulster County Court v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 2224-2225, and 2225, n. 16.
No matter what evidence the majority thinks is “some” evidence and no matter what this court has said previously, the significant fact is that the instruction itself does not tell the jury that any amount of evidence at all will suffice as rebuttal. The instruction requires the jury to examine the evidence, weigh it and decide if it is sufficient to prevent or rebut the presumption. If the *486defense fails to provide sufficient evidence to prevent or rebut the presumption the juror could interpret the instruction to mean that the presumption against the defendant stands, whether or not the juror is convinced beyond a reasonable doubt that the defendant had the requisite intent. Under Sandstrom such a jury instruction is constitutionally impermissible.8
The Wisconsin federal district court in Dreske concluded that in light of this court’s interpretation of the jury instruction in Smith and Cupps requiring more than a slight quantum of evidence to rebut the presumption “a reasonable jury might well have assumed that because of the presumption, the burden of proof beyond a reasonable doubt on the element of intent was shifted to the defendant.”
A substantially similar line of reasoning was used by the United States Supreme Court in Sandstrom. The United States Supreme Court said that although the Montana Supreme Court interprets its presumption as requiring the defendant to produce only “some” evidence, Montana’s Rule of Evidence “expressly states that the presumption at issue here may be overcome only ‘by a preponderance of evidence.’ . . . Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the issue of intent.” *487The United States Supreme Court said that the Montana Rule of Evidence serves to show that a reasonable man could interpret the presumption as shifting- to the defendant the burden of proving his innocence by a preponderance of evidence. 442 U.S. at 518, 99 S. Ct. at n. 7.
The majority opinion asserts that “ [s] ince the instruction specifically states: ‘When there are no circumstances [to prevent or rebut the presumption]/ no reasonable juror could interpret it as shifting the burden of persuasion to the defendant.”
Other jurisdictions have concluded that language similar to “when there are no circumstances to prevent or rebut the presumption” renders the presumption instruction more offensive, because this additional language expressly shifts the burden of persuasion to the defendant.
The Connecticut Supreme Court in State v. Harrison, 178 Conn. (41 Conn. L.J., No. 9 at p. 5) (1979), found that the jury instruction concerning the presumption of intent “not only parallels the condemned language in Sandstrom, but further offends by the use of the clause, ‘until some credible evidence comes into the case/ because it is an explicit shifting of the burden to the defendant.”
Before the Sandstrom decision, several federal courts of appeal expressed disapproval of language similar to our “when there are no circumstances to prevent or to rebut the presumption” language. In Mann v. United States, 319 F.2d 404 (5th Cir. 1968), cert. denied, 375 U.S. 986 (1964), the following instruction, now known as the Mann instruction, was given:
“It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.” 319 F.2d at 407.
*488The court of appeals in Mann reversed the conviction concluding that the clause “So unless the contrary appears from the evidence” shifted the burden of proof from the prosecution to the defendant: *489The Wisconsin instruction which uses the phrase “the law presumes” is more apt to he interpreted as shifting the burden of persuasion than the Mann instruction which uses the word “infers.”
*488“. . . If the charge had ended when the jury was told that a person is presumed to intend the natural consequences of his own acts, when considered in the light of the charge as a whole, there would have been no error. When the words, ‘So unless the contrary appears from the evidence’ were introduced, the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.” Mann v. United States, 319 F.2d at 409.9
*489For the reasons stated, I conclude that a reasonable juror could interpret the Wisconsin jury instruction concerning the presumption of intent as shifting the burden of persuasion to the defendant. The instruction is therefore unconstitutional under Sandstrom. The potential harm of the instruction was not removed by the other instructions given at the trial. Sandstrom, 442 U.S. at 518, 99 S. Ct. at 4722, n. 7; State v. Harrison, 178 Conn. (41 Conn. L.J., No. 9, at 6. I would conclude that in this case the erroneous instruction constituted prejudicial error. See State v. Sandstrom, 603 P.2d 244, 245 (Mont. 1979).
C.
Although the majority recognizes that in 1977 the Uniform Criminal Jury Instructions Committee developed a revised instruction to replace the presumption of intent instruction in issue in the case at bar, the majority expresses neither approval nor disapproval of a trial court’s continued use of the presumption of intent instruction. Nevertheless, trial courts of this state should not be misled to think that this court approves the continued use of the presumption of intent instruction. Although the state has argued vigorously (and effectively) in the case at bar that the presumption of intent instruction is constitutional, the state agreed in oral argument that it is advisable that the instruction no longer be used.
In Genova, a case in which the court of appeals found the presumption language constitutional, the court of ap*490peals wisely advised that “Elimination of presumption language in criminal instructions wherever and whenever possible will avoid the tedious and burdensome analysis of its effect that is necessarily to assure the protection of the rights guaranteed by our Constitutions.” 91 Wis.2d at 621.
While the precise language of an instruction is a matter for the trial court to determine, I urge the trial courts to use the instruction proposed by the Uniform Criminal Jury Instructions Committee in 1977 as a model and to make appropriate revision and adaptation of the instruction to fit each case at hand.
II.
I also disagree with the majority’s conclusion that the trial court did not err in refusing to instruct the jury on manslaughter. The majority states that the “evidence does not show ‘reasonable, adequate provocation’ as would overcome or suspend the exercise of judgment of an ordinary man, since the defendant was aware one month prior to the crime that his wife had a boyfriend who stayed overnight.” The trial court did not base its refusal to give the manslaughter instruction on this ground.
The testimony was that Muller’s wife had left him on several occasions but that he loved her and always wanted her back. Muller’s wife had her own apartment at the time of the killing. Approximately one month prior to the killing Muller’s sister told him that she had heard rumors that his wife was “running around on him” and that he should investigate it. The sister testified that at that time the defendant “cut me off and didn’t want to hear it ... . [didn’t] believe it.” The defendant testified that he did not believe the rumors because he was still staying at his wife’s apartment; that he usually worked from about 9 p.m. until 6 a.m.; that he was *491usually at his wife’s apartment during the daytime hours; and that he never saw another man at the apartment.
During the week of June 25 Muller had worked an earlier shift from about 4:30 p.m. to 12:30 a.m., and on June 25 was allowed to leave about 10 p.m. About midnight of June 25 his sister called and asked him to come over. Muller and his sister met until about 2 a.m. on June 26. Muller’s sister told him that his wife was going out with and sleeping with another man named Troxel; that she had learned his name very recently; and that she had recently seen Troxel with Muller’s wife. She described Troxel’s car to Muller and told Muller that it was often parked in front of the wife’s apartment.
Muller testified that in this second discussion with his sister he could tell she was positive about the information, whereas the first time it seemed she was just relating rumors. Muller’s sister described his response to the news as “very unhappy,” “depressed,” “despondent,” “terrible state of mind,” “devastated,” “just absolutely out of it, he was not himself.” Muller testified that he was “really upset” and “furious” and he wasn’t sure whether to believe the news and he was going to make sure himself. He called his wife from a pay phone and she first denied and then admitted going out with another man. He told her he would come up to talk about it. She told him not to come up, denied that the man was there, and hung up. He drove to her apartment and found the car his sister had described as Troxel’s parked in front of the house. He described his reaction as “irate,” “furious” and “mad.” There was conflicting evidence as to whether Muller brought the gun up to the apartment or whether the gun was in the apartment and Muller and Troxel wrestled for it.
The majority’s reasoning that “heat of passion” did not exist is because of its inaccurate view that the only rea*492sonable interpretation of the evidence was that there was approximately a one-month time lapse between Muller learning that his wife was sleeping with Troxel and the death of Troxel. The majority would seem to concede that if Muller had just learned that his wife was sleeping with another man and was confronted with the other man’s car parked in front of his wife’s apartment and the other man’s semi-nude body standing in his wife’s bedroom in the middle of the night there would be reasonable grounds for finding that Muller acted in heat of passion.
After reading the record I conclude that although one reasonable interpretation of the evidence is, as the majority states, that “the defendant was aware one month prior to the crime that his wife had a boyfriend who stayed overnight,” another equally reasonable interpretation is that he did not really find out about the boyfriend until an hour before the killing. A reasonable construction of the evidence viewed in the light most favorable to the defendant, State v. Mendoza, 80 Wis.2d 122, 153, 258 N.W.2d 260 (1977), supports the defendant’s argument that the jury be given the opportunity to determine whether there was “reasonable, adequate provocation.”
For the reasons set forth, I dissent from the majority opinion.
I have been authorized to state that Mr. Justice Hef-fernan joins in that portion of this dissenting opinion which discusses the presumption of intent contained in the jury instruction.
In Beauregard v. State, 146 Wis. 280, 288-89, 131 N.W. 347 (1911), which involved the “intent presumption,” this court stated that the words “necessary,” “natural,” “probable,” “usual” and “ordinary” are “used as alternatives and substantially as synonyms.” There is also no distinction between the meaning of the words “deliberate” and “voluntary” in the context of this pre*479sumption. Nor is there a difference between “a person” and “a reasonable person” in the context of this presumption.
The majority opinion does not make clear whether its holding is based on Wisconsin law or on how a reasonable juror could interpret the instruction.
The jury instruction in the present case and in Adams repeats the presumption language twice by applying the presumption language specifically to the crime charged. The two-sentence instruction states:
“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 eonsquences of his deliberate acts. If one person assaults another violently with a dangerous weapon likely to kill, and the person thus assaulted dies therefrom, then when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended.”
In Genova, 91 Wis.2d at 604, n. 4, the court of appeals noted *482that the jury instruction in that case contained only the first sentence, not the second sentence, and opined that the two-sentence presumption language is “obviously more perilous” than the one-sentence presumption. The court in Genova specifically refused to make its decision applicable to the two-sentence instruction. In Adams the court distinguished that case from Genova on the ground that the jury instruction in Adams was the two-sentence instruction. Adams, 92 Wis.2d at 892.
The instruction in Dreske was of the one-sentence variety. See note 4 supra.
McCormick, Evidence 802-803 (2d ed. 1972).
Jurors who are not familiar with the legal term “presumption” might very well interpret the word in the same way the word is used in another part of the jury instruction. The word presumption appears in the phrase “presumption of innocence,” a phrase generally stressed throughout the trial.
The jury is informed that because of the “presumption” of innocence, the presecution has the burden of proving beyond a reasonable doubt that the defendant is guilty. In this case the jury instructions included the statement: “The law presumes every person charged with the commission of an offense to be innocent. This presumption attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt. The defendant is not required to prove his innocence.” (Emphasis supplied.)
Jurors might think that the presumption of intent is similar to the presumption of innocence in that the presumption can be overcome only by the party against whom the presumption operates introducing evidence which satisfies a jury beyond a reasonable doubt.
Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich. L. Rev. 195, 196-207 (1953).
It would also be reasonable for jurors to believe that the judge would not instruct them on a presumption which was not to be used in the case at hand and that the judge was telling them that there were no circumstances sufficient to prevent or rebut the presumption. Jurors who adopted this interpretation would have given the presumption conclusive effect.
Under one theory of presumption, the trial court does not instruct the jury with regard to the presumption if it determines “that the evidence is sufficient to support a finding contrary to the presumed fact.” McCormick, Evidence 821. See also, People v. Hemmer, 19 Cal. App.3d 1052, 1060-1063, 97 Cal. Rptr. 516 (1971), which held it to be reversible error for the trial court to have instructed the jury as to a presumption when evidence had been introduced to rebut the presumption.
See also, Cohen v. United States, 378 F.2d 751, 755 (9th Cir. 1967), cert. denied, 389 U.S. 897; United States v. Driscoll, 454 F.2d 792 (5th Cir. 1972); United States v. Robinson, 545 F.2d 301, 305-306 (2d Cir. 1976) (“Thus, the ‘natural and probable consequences’ charge, particularly when, as here, it contains the phrase ‘unless contrary appears from the evidence,’ is a burden-shifting charge which has the potential for misleading the jury with respect to the requirement that the government must prove every element of an offense beyond a reasonable doubt.”); United States v. Chiantese, 560 F.2d 1244, 1255 (5th Cir. 1977) (en banc) (“No district court in this circuit shall include in its charge to the jury an instruction on proof of intent which is couched in language which could reasonably be interpreted as shifting the burden to the accused to produce proof of innocence. This includes charges such as: It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. So unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly *489omitted by the accused.”) See also, Menard v. State, 578 P.2d 966, 970 (Alas. 1978); Howard v. State, 583 P.2d 827, 831-833 (Alas. 1978).