(dissenting).
I cannot agree that as a matter of law the state has not proved beyond a reasonable doubt that defendant intentionally caused the death of his wife. There is nothing extraordinary in permitting an unwitnessed homicide to be reconstructed by circum*144stantial evidence. Indeed, this is the usual situation. As I read this record, the jury could well conclude that the appearance of a serene and respectable marriage masked a relationship of deep and progressive hostility between defendant and his wife. It is not clear what the root of her mental and emotional disturbance was. However, there is considerable evidence that it may have stemmed from a deep-seated aversion to defendant’s sexual overtures. Defendant himself testified that this had been a problem between them from the beginning of their marriage. The events which culminated in Mrs. Lundstrom’s death began when she refused her husband intercourse and in a fit of anger severely bit him on the hand. When she attempted to leave the house, he sharply remonstrated with her and followed her to an outbuilding where she cried out in a voice which her daughter characterized as a scream, “Why do you always have to act like this?” According to defendant, Mrs. Lundstrom thereupon “went to pieces and started hitting me.” Defendant stated he put one arm around her and his hand on her neck and pushed her against the wall. A police officer testified that defendant quoted his wife as saying, “I hate you, I hate you,” immediately before defendant pushed her and she fell down. Unable to detect his wife’s breathing or her pulse, defendant made no effort whatever to seek help from his daughter or otherwise to secure medical aid but took the time to dress, secure his car, and drive to the police station without making any attempt to resuscitate his wife or move her back to the house for that purpose. The marks found on her neck were entirely consistent with defendant’s version of having seized his wife by the throat.
From all of the evidence recited, it was, in my opinion, the prerogative of the jury to find that defendant in a fit of passion intentionally strangled his wife. While defendant’s unblemished record is a factor which the jury could consider, and undoubtedly did, it should not insulate him from a conviction for a crime of passion, as the jury found. It is inconceivable to me, as it was to the jury, in the light of the medical testimony adduced, that *145Mrs. Lundstrom’s death could result from anything except violent pressure exerted by a husband who was temporarily obsessed by anger and frustration. As we have so often said, in the absence of a confession, intention to effect death is an element which can be proved only by apparent motive and other surrounding circumstances. In my judgment, there was ample evidence from which the jury could find that, for however brief a moment, defendant did intend to strangle his wife and succeeded in doing so. This also was the conclusion the trial judge reached.
As to the confusion occasioned by the use of the words “intentionally” and “without a design to effect her death,” it need only be said that the court instructed the jury on at least five occasions during the charge, and again when asked for further instructions, that to find defendant guilty the state must prove the death was intentionally caused. The only reference to the words “without a design to effect her death” was made in connection with a reading of the indictment. In any event, defendant made no objection nor took any exception to the charge. Under these circumstances, in my opinion no prejudice occurred and defendant has acquiesced in the charge as given and in the irregularities in the indictment.
I would affirm.