BashKOkd, J.
The motions and pleas interposed on behalf of the defendant challenging the sufficiency of the information and urging former jeopardy are fully met by the decision of this court on the first appeal. It was there held that the evidence adduced did not justify a verdict of premeditated murder, -and that there was error in refusing to give the instruction requested on behalf of the defendant that the jury might find from the evidence that the defendant was guilty of manslaughter in the second or fourth degree. It was there held that upon this information and upon substantially the same evidence the jury might have found that the killing was done in heat of passion and not from premeditated design, although the defendant had testified that he was not made angry by the alleged confessions of the deceased. The action was remanded for a new trial upon the same information and upon such evidence as might be brought forward to establish the guilt of the defendant and the degree of homicide if he should be again convicted. The trial court followed the rules of law laid down in that decision and the jury found the defendant guilty of manslaughter in the second degree. The particular objections raised to this judgment may therefore be regarded as res ad-judicóla and cannot, therefore, require extended consideration. It is urged that the trial court, by withdrawing from the jury on the first trial all offenses other than murder in the first degree, acquitted the defendant of such charges. This was simply an erroneous instruction given by the court, [126]*126and the defendant was not placed in jeopardy as to the minor offenses that were withdrawn from and which were not considered by the jury. Hoffman v. State, 91 Wis. 611, 73 N. W. 51; Perkins v. State, 78 Wis. 551, 47 N. W. 827.
The contention is made on behalf of the defendant that the jury on the first trial, by its verdict of murder in the first degree, which involves a premeditated design, in effect acquitted the defendant of any offense in which heat of passion is an essential element, as in manslaughter; that premeditated design and heat of passion are inconsistent terms and cannot both exist at the same time. The last statement may be true in the abstract with respect to a mental state, but it cannot be applied as a rule of evidence. There may be a premeditated design to kill. There may be sudden provocation, and in the heat of passion the crime may be committed, and it is then for the jury to determine from the testimony the degree of homicide. This was the state of the record in State v. Johnson, 1 Ired. Law (23 N. C.) 354, 35 Am. Dec. 742, the leading case cited by defendant’s counsel. The court there sustained a verdict of murder, although it is clear from the opinion that a conviction of a less offense would have been approved. Under such circumstances one jury might believe that the offense was committed upon a premeditated design, and a second jury might believe from the same evidence that the crime was the result of sudden provocation and committed in the heat of passion. The authorities do not sustain the defendant’s contention that the conviction of murder necessarily negatives an element of the lower offense of manslaughter. The statements found in text-writers and adjudicated cases referred to by counsel with respect to former jeopardy can have but slight application under the statutes and decisions of this state. The words “premeditated design,” found in sec. 4338, Stats. (1898), defining murder in the first degree, signify merely an intent to kill. Sudden intent is not excluded. Hogan v. State, 36 Wis. 226; Cupps [127]*127v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546. In Hogan v. State Chief Justice Blah enters into an able and exhaustive discussion of the common and statute law upon the subject, and places a construction upon this statute which now has the full approval of the court. He says (p. 244) :
“We take the 'premeditated design’ of our murder in the •first degree to be simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent, and need not be slow or last long. This very plainly appears, not only by the force of the words used, but also by the apparent use, throughout the definitions of murder and manslaughter, of the terms 'design’ and 'premeditated design’ to effect death as co-equal terms.”
Applying the language to the instant case, the jury on the first trial must have been convinced that the defendant had previously, or upon provocation arising at the time, formed a design to kill his wife. " If the evidence justified this conclusion he was guilty, of murder in the first degree. The jury on the second trial must have found that there was no design to effect death, but that in the heat of passion arising from the quarrel he killed his wife in a cruel and unusual manner, which supports the conviction of manslaughter in the second degree. This view is further supported by the discussion of the subject found in the two opinions of Mr. Justice MARSHALL in Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546.
It is also contended that the decision of this court on the first appeal, that the evidence was not sufficient to sustain the verdict, acquitted the defendant of murder in the first degree. That rule was early discarded in this state. In re Keenan, 7 Wis. 695; Benedict v. State, 14 Wis. 423. This court in State v. Parish, 43 Wis. 395, in discussing the effect of a motion for a new trial, says (p. 401) :
“When a verdict of guilty in a criminal case is set aside, •all the proceedings on the trial are necessarily set aside and vacated with the verdict. So when the verdict is set aside [128]*128on motion of the accused, and be afterwards alleges that the’ trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved have been set aside and vacated at his request, and that he has thereby deprived himself of the means of proving his allegation of jeopardy.”'
That rule, which is subject to the qualification indicated in the case cited below, applies to the objection urged as to-the legality of the last conviction. Birker v. State, 118 Wis. 108, 94 N. W. 643, holds that when the act for which the accused is indicted is the same act for which he is convicted, the conviction of the lower degree is proper, although the indictment contains averments constituting the offense of the-highest degree of the species of crime and omits to state the-particular offense and circumstances characterizing a lower-degree of the same crime. It is a familiar doctrine that upon indictment for murder in the first degree the defendant might in the first instance have been convicted of any lesser grade of homicide, because the less offense is included in the greater; but if upon the trial he is found guilty of manslaughter and that conviction is set aside, he cannot thereafter be convicted of murder in the first- degree. State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 120. We must hold, therefore, that there is no force in the objections urged against the procedure in this action.
Defendant’s counsel strongly insists, with much plausibility, that the trial court erred in excluding letters written by the deceased to the defendant immediately prior to the date of the criminal act and while she was engaged in teaching at Stowell.
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BashKOkd, J.
The motions and pleas interposed on behalf of the defendant challenging the sufficiency of the information and urging former jeopardy are fully met by the decision of this court on the first appeal. It was there held that the evidence adduced did not justify a verdict of premeditated murder, -and that there was error in refusing to give the instruction requested on behalf of the defendant that the jury might find from the evidence that the defendant was guilty of manslaughter in the second or fourth degree. It was there held that upon this information and upon substantially the same evidence the jury might have found that the killing was done in heat of passion and not from premeditated design, although the defendant had testified that he was not made angry by the alleged confessions of the deceased. The action was remanded for a new trial upon the same information and upon such evidence as might be brought forward to establish the guilt of the defendant and the degree of homicide if he should be again convicted. The trial court followed the rules of law laid down in that decision and the jury found the defendant guilty of manslaughter in the second degree. The particular objections raised to this judgment may therefore be regarded as res ad-judicóla and cannot, therefore, require extended consideration. It is urged that the trial court, by withdrawing from the jury on the first trial all offenses other than murder in the first degree, acquitted the defendant of such charges. This was simply an erroneous instruction given by the court, [126]*126and the defendant was not placed in jeopardy as to the minor offenses that were withdrawn from and which were not considered by the jury. Hoffman v. State, 91 Wis. 611, 73 N. W. 51; Perkins v. State, 78 Wis. 551, 47 N. W. 827.
The contention is made on behalf of the defendant that the jury on the first trial, by its verdict of murder in the first degree, which involves a premeditated design, in effect acquitted the defendant of any offense in which heat of passion is an essential element, as in manslaughter; that premeditated design and heat of passion are inconsistent terms and cannot both exist at the same time. The last statement may be true in the abstract with respect to a mental state, but it cannot be applied as a rule of evidence. There may be a premeditated design to kill. There may be sudden provocation, and in the heat of passion the crime may be committed, and it is then for the jury to determine from the testimony the degree of homicide. This was the state of the record in State v. Johnson, 1 Ired. Law (23 N. C.) 354, 35 Am. Dec. 742, the leading case cited by defendant’s counsel. The court there sustained a verdict of murder, although it is clear from the opinion that a conviction of a less offense would have been approved. Under such circumstances one jury might believe that the offense was committed upon a premeditated design, and a second jury might believe from the same evidence that the crime was the result of sudden provocation and committed in the heat of passion. The authorities do not sustain the defendant’s contention that the conviction of murder necessarily negatives an element of the lower offense of manslaughter. The statements found in text-writers and adjudicated cases referred to by counsel with respect to former jeopardy can have but slight application under the statutes and decisions of this state. The words “premeditated design,” found in sec. 4338, Stats. (1898), defining murder in the first degree, signify merely an intent to kill. Sudden intent is not excluded. Hogan v. State, 36 Wis. 226; Cupps [127]*127v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546. In Hogan v. State Chief Justice Blah enters into an able and exhaustive discussion of the common and statute law upon the subject, and places a construction upon this statute which now has the full approval of the court. He says (p. 244) :
“We take the 'premeditated design’ of our murder in the •first degree to be simply an intent to kill. Design means intent, and both words essentially imply premeditation. The premeditation of the statute does not exclude sudden intent, and need not be slow or last long. This very plainly appears, not only by the force of the words used, but also by the apparent use, throughout the definitions of murder and manslaughter, of the terms 'design’ and 'premeditated design’ to effect death as co-equal terms.”
Applying the language to the instant case, the jury on the first trial must have been convinced that the defendant had previously, or upon provocation arising at the time, formed a design to kill his wife. " If the evidence justified this conclusion he was guilty, of murder in the first degree. The jury on the second trial must have found that there was no design to effect death, but that in the heat of passion arising from the quarrel he killed his wife in a cruel and unusual manner, which supports the conviction of manslaughter in the second degree. This view is further supported by the discussion of the subject found in the two opinions of Mr. Justice MARSHALL in Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N. W. 546.
It is also contended that the decision of this court on the first appeal, that the evidence was not sufficient to sustain the verdict, acquitted the defendant of murder in the first degree. That rule was early discarded in this state. In re Keenan, 7 Wis. 695; Benedict v. State, 14 Wis. 423. This court in State v. Parish, 43 Wis. 395, in discussing the effect of a motion for a new trial, says (p. 401) :
“When a verdict of guilty in a criminal case is set aside, •all the proceedings on the trial are necessarily set aside and vacated with the verdict. So when the verdict is set aside [128]*128on motion of the accused, and be afterwards alleges that the’ trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved have been set aside and vacated at his request, and that he has thereby deprived himself of the means of proving his allegation of jeopardy.”'
That rule, which is subject to the qualification indicated in the case cited below, applies to the objection urged as to-the legality of the last conviction. Birker v. State, 118 Wis. 108, 94 N. W. 643, holds that when the act for which the accused is indicted is the same act for which he is convicted, the conviction of the lower degree is proper, although the indictment contains averments constituting the offense of the-highest degree of the species of crime and omits to state the-particular offense and circumstances characterizing a lower-degree of the same crime. It is a familiar doctrine that upon indictment for murder in the first degree the defendant might in the first instance have been convicted of any lesser grade of homicide, because the less offense is included in the greater; but if upon the trial he is found guilty of manslaughter and that conviction is set aside, he cannot thereafter be convicted of murder in the first- degree. State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 120. We must hold, therefore, that there is no force in the objections urged against the procedure in this action.
Defendant’s counsel strongly insists, with much plausibility, that the trial court erred in excluding letters written by the deceased to the defendant immediately prior to the date of the criminal act and while she was engaged in teaching at Stowell. This is urged especially upon the ground that the-state had offered proof of the effect which defendant’s letters, which were not produced, had upon the deceased when received by her, tending to show the existence of trouble between them, while it is claimed that the letters written by her to him show strong affection and good feeling. Counsel for the state insist that the letters were confidential communications between husband and wife and were therefore not ad[129]*129missible under sec. 4072, Stats. (1898) ; and, furthermore, that the offer of the same did not come within any of the recognized exceptions to the rule excluding privileged communications. We are not prepared to hold that, upon the trial of the husband for the murder of the wife upon a premeditated design, letters received by him from her immediately prior to the commission of the crime are not admissible as showing the relations existing between the parties and as tending to elucidate the circumstances attending the act. The admissibility might rest upon the necessity of the case as tending to rebut thé criminal intent, but we do not consider it necessary to decide the question upon the record as here presented. We have been referred to no authority directly in point and have been able to find none. It becomes material, therefore, to consider the circumstances under which the letters were offered and excluded.
The deceased, while engaged in teaching school during the months of April and May, 1903, some distance from her home, wrote her husband several times and received at least two letters from him. Mrs. Belcher, with whom deceased boarded at the time her school closed, May 29th, as a witness for the state testified that the defendant came for his wife that day, and that she heard them quarreling during the night which preceded the day of her death. Upon cross-examination, in answer to a question from defendant’s counsel, this witness stated that the deceased cried when she got letters from her husband. Counsel for defendant now insists that this answer was not responsive to the question propounded; but it is to be noted that no motion was made to strike it out. Upon redirect examination this witness testified, without objection, that the deceased cried when she got a letter from her husband. “Every letter she got she would come and tell me and she cried.” At such times “she was always downhearted and cried.” There was no motion made by defendant’s counsel to strike out this testimony.
[130]*130It is now urged by defendant’s counsel that the jury might have inferred from this testimony that a state of unkindness and ill feeling existed between husband and wife which her letters to him might have had a tendency to overcome. Such letters might have indicated her feelings towards him and also might have had a tendency to show his state of mind towards her, and in that view might have been material if he had been convicted of murder in the first degree; but as the jury has found that the crime was not premeditated, but was committed in the heat of passion, the mental state of the accused at some time prior to the commission of the offense has ceased-to be of material consequence, and the rejection of the letters, if properly offered, cannot therefore be deemed prejudicial error. The testimony offered for the purpose stated was of the same nature as evidence of the defendant’s good character. The proof would therefore go to the intent of the defendant. The evidence of good character was held not mar terial in such a case. Hogan v. State, 36 Wis. 226. In the case cited the defendant was found guilty of murder in the second degree, the killing being perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without any premeditated design to effect the death of the person killed. It is- said in the opinion, discussing the evidence of good character (p. 236) :
“The nature and qualities of the act producing death are to be found in the act and circumstances of its commission; and the good or bad character of the accused can have no possible bearing upon them.”
Moreover, a perusal of the letters, preserved in the record, shows that they throw no new or different light on the relations of the parties beyond that which the parol evidence disclosed ; hence their exclusion was not prejudicial.
The objection to the admission of the letter written by the deceased to the defendant prior to their marriage was properly sustained. It was too remote to have any material bear[131]*131ing upon any of the issues fairly presented for tibie consideration of the jury on this trial.
The evidence upon the last trial was in all material respects the same as upon the first trial, evidence which this court has held was adequate to support a conviction of manslaughter but not a verdict of murder in the first degree. Nevertheless, with lawyer-like zeal for a client in distress, counsel for defendant insist that the proof is not sufficient to support the verdict of manslaughter in the second degree. The bald fact, stands admitted that the deceased, in usual health and spirits, left Warrens for her home in company with her husband, and within an hour thereafter came to her death in a most violent and brutal manner. During that fateful period she saw no one and spoke to no one hut the accused and his daughter Nina. In the statement of facts the substance of the testimony of these two witnesses is given which in any manner tends to explain defendant’s conduct or to exonerate him from criminal responsibility for the death of this unfortunate woman who had a right to look to him for protection. It is also proper to say further, that there is no direct affirmative proof except that of the defendant and his daughter that would tend to acquit him of this awful crime. Two juries by their verdicts have declared, as they might properly, that this testimony is wholly unworthy of belief. Excluding this proof, but one conclusion results, and that is that the defendant, in the heat of passion, caused the death of his wife in a cruel and unusual manner, and was therefore guilty as found by the jury. The direct testimony in support of the verdict has not been referred to, and need not be further than to state that we consider it ample to sustain the verdict. In forbearing to discuss the evidence establishing his guilt we accord to the defendant the charity of silence.
By the Gowt. — Judgment affirmed.