CONNOR T. HANSEN, J.
On review, Muller (hereinafter defendant) raises issues concerning the submission of the verdict, admission of evidence and instructions to the jury.
Defendant Muller was convicted of the murder of Buford B. Troxel, sometimes called Pee Wee. On the date originally set for trial, the state moved for a continuance because Peggy Muller, wife of the defendant and an important state witness, was not available. Five witnesses testified as to numerous unsuccessful attempts to locate and serve subpoenas on Peggy Muller and her children. She had not obeyed a subpoena which had been left with her husband, the defendant, with whom it was believed she was then living. The trial court granted the continuance to a day certain and a body attachment was issued for arrest.
The trial commenced on the day certain and the state presented the testimony of 23 witnesses. The crime occurred in the city of Beloit.
Officer Harold Smith testified that at 2:19 a.m. on June 26, 1976, he was dispatched to 114714 Partridge avenue. When he arrived he saw Peggy Muller standing in the driveway. She was dressed in a robe and slippers and had a coat over her robe. She seemed nervous and frightened and kept looking up and down the street as she talked. She told Smith that she had just received a telephone call from her estranged husband, Kenley Muller, and that he threatened to shoot her and her boyfriend who was in the apartment. When asked what [455]*455type of vehicle Muller would be driving, she told the officer it would be an orange Ford Bronco, and when asked what type of guns he might have, she said she did not know.
Officers Kevin W. Connors and Robbie Ray Lowery testified that they responded to a dispatch regarding a shooting at 114734 Partridge avenue in Beloit on June 26,1976, at approximately 2:57 a.m.
Connors testified that when he arrived at the house, he saw two women standing in the driveway. They were later identified as Peggy Muller and Susan Lund. Peggy Muller was very excited, upset and crying, and said that she “knew he would come back on foot and shoot him.” Connors proceeded to the rear of the house, went up the stairs to Peggy Muller’s apartment, noticed that the kitchen door had been broken open, and proceeded down a hallway to the bedrooms. In one bedroom of the apartment he saw two small children on the bed and a white male lying on the floor, later identified as Troxel, partially leaning against a bed and partially against a closet door frame. He observed bullet holes in the right side of the man’s neck, in his left shoulder and directly over the area of his heart. The paramedics arrived and pronounced Troxel dead.
Officer Lowery testified that when he arrived at the apartment, Peggy Muller told him that Arnie (the defendant) had shot Pee Wee (Troxel) ; and Randy Lund, who was on the porch, told him the victim was upstairs. When he asked Peggy Muller who was responsible, she said that Kenley A. Muller was responsible and that he was driving an orange Ford Bronco but he left on foot. This information, together with the fact that the defendant had guns or rifles in his possession, was dispatched to area law enforcement officers.
Susan Lund, who lived in the apartment below Peggy Muller at the time of the shooting, testified that Peggy [456]*456Muller awakened her on the morning of June 26, 1976, by pounding on her door and saying “Please call the cops, Am just shot Pee Wee.” While they were waiting for the police, Peggy Muller told Susan Lund that Arnie had broken in through the kitchen door, that he had a gun and she had heard shots when she got downstairs. Susan Lund also testified that she had met Pee Wee Troxel when he was visiting Peggy, and that Kenley Muller visited Peggy frequently at her apartment.
During the presentation of the state’s case evidence was introduced to prove that the prosecution had exercised due diligence in attempting to subpoena Peggy Muller to testify at the trial, but was unable to successfully serve the subpoena and therefore could not procure her attendance. On the evidence presented, the court found the state had established that Peggy Muller was unavailable.
The testimony of Peggy Muller taken at the preliminary hearing- was then read into evidence at the trial. At the preliminary hearing, when Peggy Muller was asked about what had occurred on June 26, 1976, at about 2:57 a.m., she claimed a loss of memory. The state impeached her credibility by use of a prior inconsistent statement given by her to the police on June 26, 1976. It was this testimony from the preliminary hearing which was read into evidence at trial.
This prior inconsistent statement of Peggy Muller introduced at the preliminary hearing reflected that on June 26, 1976, she was separated from the defendant. At 2:57 a.m. she was in the bedroom of her apartment with Buford Troxel when she heard a loud noise outside. In this statement given to the police, Peggy Muller stated that she was sitting on the edge of the bed looking out of the bedroom window and saw the defendant. She unlocked the bedroom door which exited onto the porch and told Pee Wee to go. He refused, indicating that he was going to face the defendant. Pee Wee walked out [457]*457of the bedroom and down the hall toward the kitchen. Peggy Muller went out the other bedroom door onto the porch and toward the steps. In so doing, she saw the defendant standing in the kitchen with a gun in his hand. She saw the defendant walk from the kitchen into the hall, heard two shots, ran to the first floor apartment and banged on the front door and bedroom window of Randy and Susan Lund. She received no response, so she ran down the street to another house and knocked on the door. While she was there she saw the defendant running down the street.
In her statement Peggy Muller also said that after Officer Lowery gave her children to her, her daughter kept saying that “Arnie had killed him.”
Portions of a deposition of Peggy Muller taken on August 26, 1976, in a custody proceeding between Peggy Muller and her former husband, Richard Hanson, were also read into evidence. Hanson was attempting at that time to get custody of their daughter, Shelley Hanson, and Peggy Muller was questioned by Hanson’s attorney regarding the incident on June 26, 1976. Peggy Muller’s description of her knowledge of the crime was basically the same as she had given the police on June 26, 1976.
A pathologist testified that an autopsy was performed on the body of Buford Troxel and revealed that the cause of death was a gunshot wound in the heart.
Douglas A. Witt, Rock County Deputy Sheriff, testified that on June 26, 1976, at 3:31 a.m. he was sent to Walker Road to investigate a report that an injured person was lying alongside the road. When responding to this assignment, he saw the defendant’s orange Bronco parked on the shoulder of Walker Road, and as he proceeded to the residence he saw a body, later identified as the defendant, lying on the ground.
Officer Richard Pomeroy of the Beloit police department testified that at 3:47 a.m. he went to the scene on Walker Road. He inspected the defendant’s Ford Bronco [458]*458parked on Walker Road and observed a bullet hole in the windshield which had been made by a projectile going from the inside to the outside. He saw a handgun on the hump in the center of the floor of the Bronco, several .22 caliber live cartridges scattered on the front seat, blood on the front seat, and a pellet pistol on the floor in the back of the vehicle.
Ronald Northrup, a paramedic, testified that while taking the defendant to the hospital, he asked the defendant if the defendant realized what he had done and the defendant replied, “Yes.” Northrup then asked him, “Do you feel sorry or have any remorse for what you done?” The defendant said, “Negative, in fact, I would do it again.”
The defense presented the testimony of the defendant’s sister, Judy Pulaski, his aunt, and of the defendant.
Judy Pulaski testified that in April or May, 1976, Peggy Muller moved out of the house she was sharing with her husband, Kenley Muller, and took an apartment by herself. In June, 1976, Pulaski informed the defendant that his wife, Peggy, was being unfaithful to him. The next time Pulaski discussed Peggy’s affair with the defendant was approximately one hour before the shooting on June 26, 1976. At that time she told the defendant the name of the man Peggy had been seeing and what type of car the man drove. Pulaski had learned the man’s name was Pee Wee Troxel from several acquaintances and it was common knowledge that he and Peggy were going together. Pulaski had seen Troxel’s car at Peggy’s apartment on several occasions and had seen him there once.
The defendant testified that at the beginning of June, his sister told him that Peggy was seeing another man, and he could not believe it. After midnight on June 26, 1976, he went over to his sister’s house and she told him [459]*459that the man Peggy was seeing was Pee Wee Troxel and described his car. The defendant was mad and upset, so he left his sister and telephoned Peggy from a phone booth. They talked about Troxel. The defendant told her he was coming up to see her, and she told him not to come up. The defendant drove over to Peggy’s apartment, saw Troxel’s car, and parked his car behind it. When he saw the car, he became very mad, ran across the yard, ran up the stairs and kicked the door in. He went into the living room, saw both children sleeping, proceeded down the hall to the bedroom and saw a hand come out of the bedroom and it had a pistol in it. The defendant grabbed the hand with the pistol, swung the person around, and the pistol broke free of his grip and discharged. The defendant could not remember anything after that. The defendant also testified that he and Peggy had lived together since the shooting.
The jury found the defendant guilty of first-degree murder and, after denial of postconviction motions, the defendant brings this review.
The issues presented on appeal are:
1. Did the trial court err in refusing to submit to the jury the lesser included instruction on manslaughter contrary to sec. 940.05 (1), Stats. ?
2. Did the trial court err in admitting into evidence portions of a deposition taken during a custody proceeding between the defendant’s wife and her former husband?
3. Did the trial court abuse its discretion in admitting into evidence a statement made by the defendant’s wife to the police concerning a telephone call made to her by the defendant?
4. Did the instructions of the trial court advising the jury of the legal presumption concerning the intent to kill deny the defendant his constitutional right to due process?
[460]*460I.
The defendant contends that the trial court erred in refusing to instruct upon the crime of manslaughter proscribed by sec. 940.05(1), Stats., which provides:
“Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years:
“(1) Without intent to kill and while in the heat of passion; . . .”
This court has on several occasions defined “heat of passion” that will reduce what would otherwise be murder to manslaughter:
“ ‘That which will constitute “the heat of passion” which will reduce what would otherwise be murder to manslaughter “is such mental disturbance, caused by reasonable, adequate provocation, as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man as to render his mind for the time being deaf to the voice of reason; make him incapable of forming and executing that distinct intent to take human life essential to murder in the first degree; and to cause him, uncontrollably, to act from impelling force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition.” State v. Stortecky (1956), 273 Wis. 362, 372, 77 N.W. (2d) 721. It has been said that, “ ‘the provocation, in order to be sufficient in law, must be such as, naturally and instantly, to produce in the minds of persons, ordinarily constituted, the highest degree of exasperation, rage, anger, sudden resentment, or terror.’” 21 Am. & Eng. Ency. of Law (2d ed.), p. 177, quoted in Johnson v. State (1906), 129 Wis. 146, 159, 108 N.W. 55.’ ” State v. Hoyt, 21 Wis.2d 284, 290, 291, 128 N.W.2d 645 (1964).1
[461]*461The standard for determining whether an instruction on a lesser included offense should be submitted to the jury was stated in Garcia v. State, 73 Wis.2d 174, 185, 186, 242 N.W.2d 919 (1976) :
“The rule on instructions on lesser-included offenses was discussed recently in Harris v. State (1975), 68 Wis.2d 436, 439, 440, 228 N.W.2d 645, quoting State v. Anderson (1971), 51 Wis.2d 557, 560, 187 N.W.2d 335, and State v. Bergenthal (1970), 47 Wis.2d 668, 675, 178 N.W.2d 16:
“ ‘The general rule for determining when instructions on lesser degrees of homicide should be submitted to the jury is:
“ * “To justify submitting lesser degrees of homicide than that charged in the information, there must be a reasonable ground in the evidence for acquittal on the greater charge and for conviction on the lesser charge.”
“ ‘In State v. Bergenthal we further said:
“ ‘ “The key word in the rule is ‘reasonable.’ The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if ‘under a different, but reasonable view,’ the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury.” ’ ”
The evidence in this case shows that in late May or early June, 1976, the- defendant’s sister told him that his wife, Peggy, was being unfaithful to him. He was very sad about this and did not want to hear about it. One hour before the shooting while defendant was at his sister’s house, she told him who the person was that his wife was seeing and what type of car the man drove. [462]*462After she told him this, the defendant was unhappy, depressed and upset and did not know whether to believe it. After he left his sister’s house, he called his wife and asked her if she was going with anyone. She replied negatively. After he told her he had reliable witnesses that said she was, she admitted that she was going out. He told her they were going to talk about it and that he was coming up. She told him not to come up, and when he asked if her boyfriend was there, she replied “no,” but told him not to come up and hung up the phone. The defendant went over to his wife’s apartment and the car which his sister had described to him was parked in front of the house. He was furious, ran up the stairs, and kicked in the kitchen door. He went into the living room and saw both children sleeping, and went down the hallway to the bedroom. The defendant remembers the pistol being shot once, but testified that he could not remember anything after that. The evidence also showed that three bullets entered the man’s body.
This is not evidence showing sudden resentment or such “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 a man had stayed overnight at his wife’s apartment. Cf. Zenou v. State, 4 Wis.2d 655, 91 N.W.2d 208 (1958); State v. Bond, 41 Wis.2d 219, 163 N.W.2d 601 (1969); State v. Lucynski, 48 Wis. 2d 232, 179 N.W.2d 889 (1970); and Krebs v. State, 64 Wis.2d 407, 219 N.W.2d 355 (1974).
Furthermore, the evidence does not indicate sufficient provocation to justify carrying a gun when the defendant went to his wife’s apartment. Therefore, the trial court did not err in refusing to submit the lesser offense of manslaughter.
[463]*463II.
The trial court admitted in evidence the deposition of Peggy Muller taken during a custody proceeding between her and her former husband. The defendant contends that admission of this evidence denied him his right to confrontation.
Sec. 908.045, Stats., provides:
“. . . Hearsay exceptions; declarant unavailable. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(4) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.”
The deposition of Peggy Muller was admissible under this subsection, because she was unavailable as a witness; her statements tended to subject her to criminal liability since she admitted having sexual relations with Troxel; her statements made her an “object of disgrace,” and were even against her proprietary interest since they provided a foundation for depriving her of custody of her daughter.
However, compliance with a state’s hearsay rule does not insure compliance with the constitutional mandate for [464]*464confrontation in a criminal case.2 In State v. Olson, 75 Wis.2d 575, 588-591, 250 N.W.2d 12 (1977), this court analyzed the federal law on the right of confrontation and stated:
“The confrontation right is not absolute. However valuable to the accused, the right gives way to other legitimate considerations in the criminal trial process. As we said in Lenarchick, the United States Supreme Court appears to have concluded that there are instances where even though there is no face-to-face confrontation, the due process and confrontation requirements are satisfied. Under some circumstances it appears that an uncross-examined statement is clothed with special indicia of trustworthiness. The hearsay rule and its exceptions may at times satisfy the degree of trustworthiness, but the satisfaction of the hearsay requirements does not necessarily satisfy the confrontation rule. Determining whether the right to confront and to cross-examine must give way in any particular instance ‘calls into question the ultimate “ ‘integrity of the fact-finding process’ ” and requires that the competing interest be closely examined.’ Courts have balanced such factors as: whether the witness is unavailable and the prosecution has made good faith and reasonable efforts to procure the witness; whether the evidence has high standards of assurance of reliability or trustworthiness; whether the evidence is admissible under an exception to the hearsay rule; whether the statements introduced are subject to divergent views; whether there is high probability of assurance that the cross-examination of the witness would not cast any doubts on the admitted statements; whether the defendant’s objection to the evidence was raised via other testimony during the trial; whether the defendant had been afforded prior opportunities for cross-examination of the witness; whether the evidence is collateral or probative of an element of the crime; whether the evidence ties the defendant directly to the crime; and whether the practical considerations of convenience and speedy trials outweigh the inconvenience of .producing the witness.” (Footnotes omitted.)
[465]*465Under the facts of this case admission of the deposition did not violate the defendant’s right to confrontation. This conclusion is based on the following factors: Peggy Muller was unavailable as a witness; the state made a good faith and reasonable effort to produce her as a witness; the hearsay evidence meets high standards of assurance of reliability or trustworthiness; the evidence is admissible under an exception to the hearsay rule; the defendant had an opportunity at the preliminary examination to cross-examine Peggy Muller; and the evidence is directly probative of the elements of the crime charged.
III.
The defendant next argues that the trial court abused its discretion in admitting testimony of Officer Harold Smith regarding a statement made to him by Peggy Muller at her apartment at approximately 2:19 a.m. on June 26, 1976, approximately a half hour before the shooting of Buford Troxel. Smith testified that Peggy Muller told him that she had just received a phone call from the defendant, and that he threatened to come over and shoot her and her boyfriend, who was then in the apartment. The trial court, over defense counsel’s objection, ruled that this hearsay statement was admissible as an excited utterance.
This court has held on numerous occasions that the decision on the admissibility of a hearsay statement as an excited utterance is within the discretion of the trial court.3 This court will uphold the exercise of such dis[466]*466cretion unless the record shows that the ruling was manifestly wrong and an abuse of discretion.4
Sec. 908.03, Stats., provides:
“. . . The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
“(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
Therefore, before a statement is admissible as an excited utterance, there must have been (1) a “startling event or condition” and (2) the declarant must have made the statement relating to the startling event or condition while “under the stress of excitement caused by the event or condition.”
Clearly, Peggy Muller’s statement related to a startling event. The receipt of a telephone call by a wife shortly before 2:19 a.m. from her estranged husband threatening to come over to her apartment and shoot her and her boyfriend, who is spending the night in the apartment, is a startling event, particularly when the wife, as in this case, believes that her husband will carry out his threat, and knows that he has the transportation and guns necessary to do so.
As for the second element of the excited utterance exception, this court stated in Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 56, 57, 252 N.W.2d 81 (1977):
“The excited utterance exception, which was formerly part of the res gestae exception, is based upon sponta[467]*467neity and stress which endow such statements with sufficient trustworthiness to overcome the reasons for exclusion of hearsay. In determining whether a statement qualifies as an excited utterance, the important factors for the judge’s consideration are timing and stress. As we said in Wilder v. Classified Risk Ins. Co., 47 Wis.2d 286, 292, 177 N.W.2d 109 (1970), a case no less applicable because it concerned the older res gestae exception:
“ ‘It must be shown that the statement was made so spontaneously or under such psychological or physical pressure or excitement that the rational mind could not interpose itself between the spontaneous statement or utterance stimulated by the event and the event itself. The psychological basis for the res gestae exception is that people instinctively tell the truth but when they have time to stop and think they may lie. . . .’ ” (Footnote omitted.)
The time period between the triggering event and the utterance is the key factor, and under sec. 908.03(2), Stats., time is measured by the duration of the condition of excitement rather than mere time elapse from the event or condition described. Christensen v. Economy Fire & Casualty Co., supra, at 57. “The significant factor is the stress or nervous shock acting on the declarant at the time of the statement.” Id. at 57, 58. A statement of a declarant whose condition at the time of his declaration indicates that he is still under the shock of his injuries or other stress due to special circumstances will be admitted. Id. at 58.
The evidence in this case shows that the police arrived at the Partridge avenue address at 2:19 a.m. after Peggy Muller received the threat from the defendant. She was standing in the driveway, dressed in a robe and slippers with a coat over her robe. She was nervous, frightened, was wringing her hands, and kept looking up and down the street as she talked to the police officer.
Peggy Muller’s statement to Officer Smith was made when she was still under stress caused by the threatening [468]*468telephone call. The trial judge was not manifestly wrong and he did not abuse his discretion in admitting the statement into evidence.
IV.
The defendant finally argues that certain of the jury instructions denied him his right to due process of law. The defendant claims the instruction had the effect of relieving the state of the burden of proving the elemental fact of intent in this first-degree murder case and shifted the burden of persuasion on the issue of intent to the defendant.3
The cause of the death of the victim is not at issue. The defendant and his wife were separated and the defendant had known for some time that another man had spent a number of nights at his wife’s apartment. On the night of the incident the defendant telephoned his wife and told he was coming over and would shoot her and her boyfriend. He went to the apartment with a gun he had recently purchased and broke into the apartment. His wife fled. At close range, he shot at Troxel four times with the gun which had to be cocked after each shot. Three of the bullets entered the body of Troxel; one of them entered Troxel’s heart and caused his death.
The trial court, without defense objection, gave the instruction on first-degree murder where the cause of death is not in issue, which is identified as Wisconsin Jury Instruction — Criminal 1100. The instruction first defined the crime of first-degree murder. It then in[469]*469structed the jury that before a defendant may be found guilty of that crime “the State must prove by evidence which satisfies you beyond a reasonable doubt” that the two elements were present. The elements were then identified and one of them was “that the defendant intended to kill Buford Troxel.” The trial court then instructed the jury on the meaning of the phrase “intent to kill,” stating:
[468]*4685 Such a conclusion was reached by the Court of Appeals in Adams v. State, 92 Wis.2d 875, 289 N.W.2d 318 (Ct. App. 1979), where the court held that the language in Wisconsin Jury Instruction — Criminal 1105 in effect shifted the burden of proof to the defendant and relieved the state of proving the element of intent beyond a reasonable doubt. A petition for review has been filed in that case by the State of Wisconsin.
[469]*469“Under the Criminal Code, the phrase ‘intent to kill’ means the mental purpose to take the life of another human being. This intent to kill is the element of this offense that distinguishes it from all other degrees of murder. While the law requires, in order to constitute murder in the first degree, that the killing shall have been intended, it does not require that the intent to take human life shall exist for any particular length of time before the crime is committed, or that the killing should have been brooded over, considered or reflected upon for a week, a day, an hour, or even for a minute. There may be no appreciable space of time between the formation of the intent to kill and the act of killing. If sufficient deliberation was had to form an intent to take life and to put that purpose into execution by destroying life, then there was a sufficient mental purpose to constitute murder in the first degree. The intention to kill, which is an essential element of murder in the first degree, is no more or less than the mental purpose to take human life, formed on the instant preceding the fatal act or sometime theretofore, and which continued to exist at the time of the fatal act.
“While this intent to kill must be found as a fact before you can find the defendant guilty of murder in the first degree, it must be found, if found at all, from his acts and his words and statements, if any, bearing upon his intent. You cannot look into a man’s mind to find out his intent. 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, and the person thus assaulted dies therefrom, [470]*470then, when there are no circumstances to prevent or rehut the presumption, the legal and, natural presumption is that death was intended.
“If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant did commit an act of shooting' which caused the death of Buford Troxel at the time and place charged in the information, and that at any time before doing such act the defendant had formed in his mind the purpose to take the life of Buford Troxel, and that of the act of shooting was done by the defendant in pursuance of such mental purpose, then you should find the defendant guilty of murder in the first degree as charged in the information.
“If, however, you are not so satisfied, then you must not find the defendant guilty of murder in the first degree, . . . .” (Emphasis supplied.)
The emphasized portion of the above instruction is the language challenged here.6
This court has repeatedly approved the presumption language contained in the present jury instructions, Johnson v. State, 85 Wis.2d 22, 33, 270 N.W.2d 153 (1978); Fells v. State, 65 Wis.2d 525, 534, 223 N.W.2d 507 (1974); Austin v. State, 52 Wis.2d 716, 721, 190 N.W.2d 887 (1971); State v. Carlson, 5 Wis.2d 595, 604, 93 N.W.2d 354 (1958); Hedger v. State, 144 Wis. 279, [471]*471303, 128 N.W. 80 (1911). This court has specifically held the language in the instruction to he proper in a case where the defendant contended that this language shifts the burden of proof to the defendant, Greer v. State, 40 Wis.2d 72, 77, 161 N.W.2d 225 (1968), cert. den. 393 U.S. 1122. This court has also on numerous occasions approved, in the context of challenges to the sufficiency of the evidence or requests for an instruction on lesser included offenses, the rule that a person is presumed to intend the natural and probable consequences of his acts. Lofton v. State, 83 Wis.2d 472, 478, 479, 266 N.W.2d 576 (1978).7
In Greer v. State, supra, the defendant sought reversal of his conviction for first-degree murder, claiming that the instruction on intent permits a finding of specific intent based solely on a presumption, thus shifting the burden of proof to the defendant regardless of the circumstances. This court quoted an instruction similar to that involved here, italicized the language “when there are no circumstances to prevent or rebut the presumption,” and held:
“Defendant claims this instruction permits a finding of specific intent based solely on presumption, shifting the burden of proof to the defendant regardless of cir[472]*472cumstances. The italicized portion correctly limits the application of the presumption, but one who stabs another in the neck with a knife must be held to understand that death is a natural and probable consequence of such act. This particular instruction has been used before and held to be proper. . . .” Greer v. State, supra, at 77.
The jury instructions which are challenged here were criticized by the U. S. Court of Appeals in Hughes v. Matthews, 576 F.2d 1250 (7th Cir. 1978), where that court considered the validity of the Wisconsin instruction on presuming intent where the trial court held the presumption could not be rebutted by psychiatric evidence that the defendant lacked specific intent. The court held that the district court was correct in holding that by instructing the jury to presume intent if not rebutted, and by excluding psychiatric evidence offered to rebut the presumption, Wisconsin set up a conclusive presumption which unconstitutionally relieved the prosecution of the burden, of proving the element of specific intent beyond a reasonable doubt. The court also stated that were this simply a case where jury instructions on presuming intent improperly left the jury with the impression that the petitioner had the burden of persuasion to disprove an element of the crime, the court would affirm the writ of habeas corpus and send the case back to the state court for a new trial with directions to avoid the suspect instructions. This court, in Schimmel v. State, 84 Wis.2d 287, 301, 267 N.W.2d 271 (1978), interpreted the opinion in Hughes as not condemning the presumption of intent itself, but only its combination with the rule excluding rebutting psychiatric testimony.
In Cranmore v. State, 85 Wis.2d 722, 271 N.W.2d 402 (Ct. App. 1978), the defendant claimed that the presumption language in the jury instruction relieved the state of the burden of proving beyond a reasonable doubt that the defendant intended to kill the victim and he was [473]*473therefore denied due process of law. That court relied on an analysis of the evidence in the case and the decision in Lofton v. State, supra, and concluded that the words and behavior of each of the defendants was sufficient to prove intent to kill beyond a reasonable doubt, and there was no error committed with respect to the jury instructions. This court denied review of the decision of the Court of Appeals.
In Genova v. State, 91 Wis.2d 595, 283 N.W.2d 483 (Ct. App. 1979),8 the Court of Appeals was again faced with the issue of whether the presumption language in the instructions is constitutionally impermissible, and dealt with the issue at length. Comparing the jury instruction in that case with the instruction in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed.2d 39 (1979), the Court of Appeals concluded that the Wisconsin instructions were not constitutionally infirm and set forth 18 reasons for the conclusion it reached. That case involved a defendant who was convicted of theft, party to a crime, and the court pointed out that the jury instruction there analyzed contained the presumption language in one sentence, rather than the two-sentence presumption language in the instruction challenged in the instant case.
It is axiomatic that the burden of proving all the elements of a crime beyond a reasonable doubt rests upon the state. The United States Supreme Court has so held. In re Winship, 397 U.S. 358 (1970). See also: Mullaney v. Wilbur, 421 U.S. 684 (1975). The burden of proving intent, however, ordinarily can be borne only by presentation of circumstantial evidence, because intention is a mental process that necessarily must be proved through inferences drawn from the defendant’s statements and actions. Thus, if the presumption language in the jury [474]*474instruction in this case relieves the state of its duty to prove the element of intent beyond a reasonable doubt, it denies the defendant due process.
The United States Supreme Court’s consideration of presumption language culminated in its consideration of the due process validity of the challenged instruction in Sandstrom v. Montana, supra. In that case the defendant was charged with and convicted of “deliberate homicide.”9 He admitted at trial that he had killed his victim, but argued that due to a personality disorder aggravated by alcohol consumption, he did not do so “purposely or knowingly.” The trial court, over the due process objection of defense counsel, instructed the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.”
The United States Supreme Court concluded that the instruction was unconstitutional because it denied the defendant due process of law. The court held:
“Because David Sandstrom’s jury may have interpreted the judge’s instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.” Sandstrom v. Montana, supra, at 524, 99 S. Ct. at 2459, 2460, 61 L. Ed.2d at 51.
The teaching of Sandstrom is:
“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen [ante, at 157-163]. That determination requires careful attention to the words actually spoken to the jury, ante, at 157-159, [475]*475n. 16, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction. Sandstrom, supra, at —, 99 S. Ct. at 2454, 61 L. Ed.2d at 45.
The Supreme Court has identified two types of presumptions : permissive presumptions and mandatory presumptions. A permissive presumption, or permissive inference, allows, but does not require, the trier of fact to find an element of the crime (elemental fact) upon proof by the prosecution of another fact (basic fact), and it places no burden of any kind on the defendant. Ulster County Court v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 2224, 60 L. Ed.2d 777, 792 (1979). A permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof. Allen, supra, at 157, 99 S. Ct. at 2224, 60 L. Ed.2d at 792. A permissive presumption does not violate due process of law.
A mandatory presumption requires that the 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. Allen, supra, at 157, 99 S. Ct. 2224, 2225, 60 L. Ed.2d at 792.
A mandatory presumption which is irrebuttable is a conclusive presumption. See: Morissette v. United States, 342 U.S. 246 (1952); United States v. United States Gypsum Co., 438 U.S. 422 (1978). A conclusive presumption is an irrebuttable direction by the trial court to find the elemental fact once the jury is convinced of the basic facts triggering the presumption. Sandstrom, supra, at 523, 99 S. Ct. at 2456, 61 L. Ed.2d at 46, 47. A mandatory presumption may also be rebuttable, that is, it requires the trier of fact, if satisfied as to the basic facts which trigger the presumption, to find the elemental fact unless the defendant offered evidence to the contrary. Sandstrom, supra, at 515, 99 S. Ct. at 2455, 61 L. Ed.2d at 45.
[476]*476The Sandstrom court rejected both conclusive presumptions and rebuttable presumptions which shift the burden of persuasion to the defendant:
“First, a reasonable jury could well have interpreted the presumption as ‘conclusive/ that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their ‘ordinary’ consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than ‘some’ evidence —thus effectively shifting the burden of persuasion on the element of intent. . . .” Sandstrom, supra, at —, 99 S. Ct. at 2456, 61 L. Ed.2d at 46, 47.
The state argued that, although the presumption was a rebuttable presumption, all the defendant had to do to rebut the presumption was produce some contrary evidence; at most it placed a burden of production on the defendant, but did not shift to the defendant the burden of persuasion. The court rejected this argument because it was possible that a reasonable juror could interpret the instruction as persuasion-shifting:
“We do not reject the possibility that some jurors may have interpreted the challenged instruction as permissive, or, if mandatory, as requiring only that the defendant come forward with ‘some’ evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive or persuasion-shifting effect means that we cannot discount the possibility that Sand-strom’s jurors actually did proceed upon one or the other of these latter interpretations.” Sandstrom, supra, at 519, 99 S. Ct. at 2457, 61 L. Ed.2d at 48.
Sandstrom divided rebuttable presumptions into two kinds: (1) those that shift the burden of persuasion to the defendant or require him to come forward with a quantum of proof which is greater than some, and (2) [477]*477those that place upon the defendant a burden of 'production, or require him to come forward with some evidence in rebuttal. The court also held that a rebuttable presumption which requires the defendant to produce some contrary evidence in rebuttal is constitutionally permissible, as long as no reasonable juror could interpret the presumption as shifting the burden of persuasion. In Allen, supra, at 157, 99 S. Ct. at 2225, n. 16, 61 L. Ed.2d at 792, n. 16, the court held that to the extent that a presumption imposes an extremely low burden of production, that is, being satisfied by “any evidence,” it may well be that its impact is no greater than that of a permissive inference and it may be properly analyzed as such.
The jury instruction in this case does not state a conclusive presumption and no reasonable juror could interpret it as stating a conclusive presumption. By definition, a conclusive presumption is irrebuttable. It is very apparent, however, that the presumption here may be rebutted; the instruction twice contains the phrase, “When there are no circumstances to prevent or to rebut the presumption.” This language clearly tells the jury that the presumption may be rebutted or prevented by any evidence.
Moreover, although the jury instruction in this case states a rebuttable presumption, it is not the kind of rebuttable 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 instruction requires the jurors to find intent as a natural and probable consequence of the defendant’s acts when there are “no circumstances” to the contrary. It does not require the defendant to come forward with an amount of proof greater than “some” evidence. Since the instruction specifically states: “When there are no circumstances . . . ,” no reasonable juror could inter[478]*478pret it as shifting- the burden of persuasion to the defendant.
We conclude the jury could not have interpreted the instruction in this case as constituting either a persuasion-shifting presumption or a conclusive presumption; therefore, the instruction did not deny the defendant due process of law, and is not made invalid by Sandstrom v. Montana, supra.
By the Court. — Judgment and order affirmed.