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guage. Thornton v. McGrath, 1 Duv. 349. Such contracts are voidable only at the election of the party defrauded. The party who commits the fraud is bound, and remains bound, until the party deceived has made his or her election and will thereafter be bound or not according to the election made.

If Tomppert was procured by fraud to marry the appellee, she was bound by the marriage, and remained bound until he elected to avoid it for the fraud. Whether, if he had so elected on discovering the fraud, she and he would have been alike absolved from the obligations of the marriage without the judgment annulling it, need not be decided. It was not alleged that he did so elect, and for that reason, if for no other, the facts stated in the answer do not show a right in the appellants to treat the marriage as void.

The petition and answer show that the marriage was solemnized according to the forms of law. This devolved, on those wishing to treat the marriage as void, the burden of showing, not only that there was fraud, but also that Tomppert had availed himself of his privilege to treat the marriage as void. Bassett v. Bassett, supra. For aught that appears in the answer, he may not have elected to treat it a void, but may have waived the wrong, and there by rendered the marriage valid and binding upon both, as if no fraud had been committed. It may be that he never discovered the fraud. But this can make no difference. The right to take advantage of it was personal, and not having, as far as appears, been exercised by him, can not be exercised after his death by his executor or devisees.

If a marriage procured by fraud is void, the most unjust and absurd consequences would follow. A void marriage is incapable of ratification. It is as if no pretended marriage existed-neither party is bound; the guilty and the innocent are alike at liberty to disregard it. If such a marriage as this is void, the guilty party may set up his or her fraud in order to escape the responsibilities incident to the marriage relation. Not only so, but although the injured party may elect to waive the wrong, and the guilty party may not desire to insist upon it, third parties may do so. That which leads to such consequences can not be law. The peace and good order of society, the happiness, the repose and the honor of families, as well as the principles of natural justice, forbid the recognition of such a rule.

There may be adjudged cases which seem to favor it, but if there are, it will no doubt be found, upon examination, that the marriage was either declared void by statute, or was between parties, one of whom was legally incompetent to contract marriage, or that the case was one not calling for observance of the distinction between a void and voidable marriage. This court, in the case already cited, quoted, with apparent approval, from Kent, Schouler, and Bishop, that a marriage procured by duress is void. But that was a direct proceeding by the injured party to annul the marriage, and it was wholly immaterial whether it was void or merely voidable, and, the attention of the court not having been directed to the distinc

tion, no notice was taken of it. But the subsequent part of the opinion shows that the court did not regard the marriage as void.

But the court erred in adjudging to the appellee one-half the surplus personalty. He left children by a former marriage, and she was only entitled to one-third of such surplus. Sub-section 4, sec. 11, chap. 31, Gen. Stat.

For this error alone the judgment is reversed, and the cause remanded for judgment in conformity to this opinion.

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1. ASSESSMENT.-To support a tax, there must be a valid assessment, made in substantial compliance with the statute. Hersey v. Supervisors, 37 Wis. 75, and Marsh v. Supervisors, 5 Cent. L. J. 509.

2. INJUNCTION.-A uniform and intentional assessment of property in a city, on a basis of one-third of its real value, instead of "at the full value which could ordinarily be obtained therefor at private sale, and which the assessor believed the owner, if he desired to sell, would accept in full payment," (R.S., ch. 18, sec. 31,) is invalid; and the collection of a tax based on such assessment, by sale of lands, will be enjoined.

APPEAL from the Circuit Court of Brown county.

Action to enjoin the collection of taxes assessed in 1874 upon the land of the plaintiff, within the limits of the defendant city.

The court found, among other things, as conclusions of fact, that the assessor of said city for the year 1874, who made the assessment upon which the tax mentioned in the complaint is based, did not, in very many instances, make his assessment of the personal property of said city upon actual view thereof, or upon his own opinion of the value of said property; but the valuation of personal property, as placed by him in the assessment roll of said city for said year, as assessed against the different tax-payers of said city, was obtaired, for the most part, from each individual tax-payer, and was, in most cases, the value placed upon each tax payer's personal property by himself. That said assessor, when he began to make his assessment of property in said city, left with each taxpayer a printed blank, and requested each one to fill it out, inserting in the proper blanks the kinds. of personal property owned by him, and its value. That he afterwards collected these blanks as filled out by such tax-payers, requiring them to verify the same by affidavit, and inserted the amount therein stated as the amount properly assessable to such tax-payers on personal property. That he adhered to the valuation as fixed by the tax-payer in some cases where he knew, or was strongly of opinion, that the valuation was too low, and in other cases made no effort to examine or form an

opinion or judgment of his own as to the value of personal property. That, by reason of certain specified instances of under-valuation, a large amount of personal property escaped taxation, and that thereby the amount of taxes required and actually levied upon the real estate of the plaintiff was greatly increased.

As conclusions of law the court found: 1. That the taxes so assessed, levied and attempted to be collected, are a lien upon plaintiff's said real estate, and a cloud upon his title. 2. That they are illegal, inequitable and void. 3. That the plaintiff is entitled to the relief demanded in the complaint.

W. J. Lander, for defendant and appellant; John J. Tracy, for plaintiff and respondent.

COLE, J., delivered the opinion of the court:

Little need be said in this case, in view of the decision in Hersey et al. v. Supervisors of Barron County, 37 Wis. 75, and Marsh et al. v. Supervisors of Clark County. 5 Cent. L. J. 509. In those cases it was held that, in order to support a valid tax, there must be a valid assessment made in substantial compliance with the statute. That a proper listing and valuation of property by the assessor, constitute the very foundation of the subsequent proceedings; and where the assessor makes an assessment in direct violation of the rules and principles prescribed by statute, the tax fails. It is quite unnecessary to restate the argument in support of these results. It only remains to apply the doctrine of those cases to the one before us.

This case involves the validity of a tax on real estate in Fort Howard, for the year 1874. The plaintiff challenges the validity of the tax on various grounds, only one of which will be noticed. On the trial, James Delaney was sworn on the part of the plaintiff, and testified substantially as follows: "I was assessor in Fort Howard in 1874, and made the assessment there that year. I made the assessment upon the basis of about cne-third the real value of the property." Again, in another part of the testimony, when speaking of the basis upon which he assessed the property of certain manufactories, he says: "I can answer positively, that I did not assess those manufactories low to encourage manufacturing in the city. I had no such intention, and assessed it at what I thought was onethird its full value, and what I think was an equal valuation of all other property in the city, as near as my judgment would allow. I assessed it at what I thought was one-third its true value.” Indeed, the fact is undisputed that the rule or basis upon which all the real and personal property of Fort Howard was assessed for that year, was one-third its actual value. It is very plain that such an assessment was wholly unauthorized and in direct violation of the statute upon the subject. The statute declares that "real property shall be valued by the assessor from actual view, at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desired to sell, would accept in full payment." Sec. 31, Ch. 18, Gen. Stats. As elements of value, the assessor is required to con

sider certain things in making the assessment of real estate. Without referring in detail to the provision, in respect to the assessment of personal property, it is sufficient to say that, as far as practicable, it is required to be assessed upon actual view, at its full value. And the oath annexed to the assessment roll requires the assessor to swear, among other things, that each valuation of property made by him is the full value which could ordinarily be obtained for the same at private sale, and which the assessor believes the owner, if he desired to sell, would accept in full payment therof. Sec. 56. It appears that all the plain provisions of the statute were entirely disregarded by the assessor, who assumed to make the assessment according to an arbitrary standard adopted by himself. Within the decisions above referred to, the assessment was illegal and the tax void.

It was, however, agreed by the. counsel for the city, that as all the property was valued on the same basis, the illegality in making the assessment could work no injury to the plaintiff. But if it be true, as this court has held, that a valid tax must be founded on a valid assessment, the argument proves nothing. There is really no security to the tax-payer, except in requiring assessors to perform their duty and make assessments in substantial compliance with the law. For, if the assessor in one town is permitted to assess property at one-third its value, the assessor in another town may assess it at one-half or one-fourth, while still another at double its value, substituting the mere caprice of the officer for the rule of the statute, and resulting in the grossest inequalities and injustice in the taxes imposed. Therefore, without considering any other question in the case, we affirm the judgment, on the ground that the assessment as made was illegal and void.

RYAN, C. J., Concurring:

Some surprise and apprehension were expressed at the bar, upon the argument, at an intimation from the bench of the ground of judgment in this case, following Hersey v. Supervisors, 37 Wis. 75, and Marsh v. Supervisors, 5 Cent. L. J. 509.

It was intimated, as it has been on other occasions, that the statutory rule of assessment is frequently or generally disregarded by assessors; and that the consequence of holding assessors to a compliance with their duties, under the statute and . the constitution, would be disastrous. It is impossible for me to judge how far so vicious a habit may prevail among assessors. But even if it were universal, it seems impossible to me that it should influence the court to hesitate in giving effect to all the consequences of their willful disregard of duty. If it be true that assessments throughout the state are frequently or generally, or universally made in defiance of the statutory rule, it appears to me better that the state, and the municipal corporations of the state, should suffer inconvenience, than that our whole system of taxation should, at the mere will of local officers, be a fraud upon the constitution, and statutes carefully framed in compliance with the constitution.

The question, I think, resolves itself into this:

Whether statutory officers can, in the execution of their office, wilfully disregard the safeguard of the statute which creates their office; whether it is for the legislature to provide a general and constitutional rule of assessment, or for assessors to set the statute at defiance, and to establish, each for himself, several and unconstitutional rules.

The statute is so carefully framed that it does not lightly trust the conscience of assessors. It requires from each a precise and positive affidavit that he has made his assessment upon the statutory rule. If an assessor do not annex his affidavit to his assessment roll, he does not complete his duty, and there is in law, no assessment. If the assessor make and annex the affidavit to an assessment made in violation of the statutory rule, he takes an absolutely false oath in the execution of his office. What faith can be reposed in an assessment so made and verified? Falsus in uno, falsus in omnibus. What security is there that such an assessment is just, equal or honest, in other respects, even upon the rule of the assessor?

It is very easy for assessors to be honest in the discharge of their duties; and, if honest, their errors of judgment can operate little to impair the uniform rule of the constitution. If they should be suffered to substitute a rule of their own for the rule of the statute, and yet to uphold their assessment by an oath that they have followed the statutory rule, it appears to me not extravagant to say that taxation in this state would rest less upon a uniform rule of assessment than upon a uniform rule of fraud and perjury.

I am quite sure that no argument of inconvenience will ever induce this court to lend its sanction to such deliberate fraud, perpetrated in the name and by the authority of the state, in a proceeding which purports to be a just and uniform, a sovereign power. It seems to me that would be a wanton abuse of judicial authority.

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1. MURDER-CASE IN JUDGMENT.—In a quarrel in a saloon between W. and L., the former drew a pistol and threatened to kill L., but was restrained by a bystander. Afterwards the altercation was continued, when W. struck L. a slight blow on the cheek. L. reached below the counter, seized a soda water bottle, and was in the act of throwing it at W., when W., who had drawn two pistols, holding one in each hand, shot L. with the pistol he held in his left hand, being prevented from using that in his right hand by a bystander. Held. that W. was properly convicted of murder in the first degree, and that it was not error for the court to refuse an instruction in regard to murder in the second degree.

2. MURDER AND MANSLAUGHTER at common law defined and distinguished.

3. MURDER IN THE SECOND DEGREE is the unlawful killing of a human being with malice aforethought, but without deliberation.

HENRY, J., delivered the opinion of the court: The defendant was indicted for the murder of Americus V. Lawrence, and convicted of murder in the first degree. On appeal to the court of appeals the judgment on that verdict was affirmed, and he has appealed to this court.

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The principal ground of complaint is, that the court failed to instruct the jury in regard to murder in the second degree. It is difficult to determine, under our statute and decisions, what is murder in the second degree; and the difficulty is attributable in part to the misapplication of the terms “malice” and “premeditation,” and partly to those sections of our statute defining manslaughter in the four degrees. "Malice" and "premeditation" have been properly defined by this court, but have been misapplied in the discussions of this question, by a failure to observe the particular features of the cases in which this court has applied those terms, as defined. "Malice is the intentional doing of a wrongful act, without just cause or excuse.' This definition is open to verbal criticism, for the intentional doing of a wrongful act is necessarily without just cause or excuse, for otherwise it would not be a wrongful act. So that those words are superfluous. It is also open to criticism as applicable to homicides. Take the case of an intentional killing at common law, which the provocation, although not justifying or excusing, reduced to manslaughter. "It was a wrongful act intentionally done without just cause or excuse," and by this definition it was malicious, and having been intentionally committed, contained all the elements of murder at common law; yet we know that there were at common law inexcusable and unjustifiable homicides intentionally committed which were but manslaughter. Lord Hale's definition of malice in fact is a deliberate intention of doing any bodily harm to another whereunto by law he is not authorized." 1 Hale's Pleas of the Crown, 450. Malice is a condition of the mind, the existence of which is inferred from acts committed or words spoken. It is that condition of the mind which "shows a heart regardless of social duty, and fatally bent on mischief." To constitute a killing murder, there must be malice aforethought-not that the malice should be thought of beforehand, which would be absurd, as it is but a condition of the mind-but that the act, prompted by this malice, should be thought of before, and it signifies properly a homicide, intentionally committed with malice. If one with malice assault another to chastise, and unfortunately kill him, unless there was an intention to kill, express or implied by law from the instrument used, or the nature of the chastisement inflicted, there could be no malice aforethought as to the killing, which was not in the contemplation of the party.

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To constitute murder, the killing must be with malice aforethought, that is, an unlawful intention to take life must precede the killing." It is impossible to construe properly the first and second

sections of our act in relation to murder, without a knowledge of the common law in regard to murder and manslaughter. Murder was thus defined by Sir Edward Coke, 3 Inst., 47: "Where a person of sound memory and discretion unlawfully killeth any reasonable creature, in being and under the king's peace, with malice aforethought." Manslaughter was the unlawful killing of another without malice express or implied. "Manslaughter, which is principally distinguishable from murder in this, that though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter; and the act being imputed to the infirmity of human nature, the correction ordained for it is proportionably lenient." East's Pleas of the Crown, 218. Sec. 1 Wag., page 445, defines murder of the first degree as follows: "Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony." By section 2: "All other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree." The word malice is not used in either section, but is included in the term murder; and malice must exist before any homicide can be declared murder in either degree.

Can there be malice aforethought where there is no intention to kill? There are cases at common law with which, apparently, the doctrine that an intent to kill is of the essence of murder is in conflict, but the conflict is only apparent. If one, in perpetrating or attempting to perpetrate a felony, kill a human being, such killing is murder, although not specifically intended, for the law attaches the intent to commit the other felony to the homicide.

The law conclusively presumes the intent to kill. "If a person breaking an unruly horse wilfully ride him among a crowd of persons, the probable danger being great and apparent, and death ensues from the viciousness of the animal, it is murder. For how can it be supposed that a person wilfully doing an act so manifestly attended with danger, especially if he showed any consciousness of such danger himself, should intend any other than the probable consequences of such an act? But, yet, if it appear clearly to have been done heedlessly and incautiously only, and not with an intent to do mischief, it is only manslaughter." East, 231. The cases of the unnatural son who exposed his sick father to the air against his will, by reason whereof he died-of the harlot who laid her child under the leaves in an orchard where a kite struck and killed it-of the man who had a beast that was used to do mischief, if he purposely turned it loose, though barely to frighten people and make sport, and it killed a person-of the workman who threw down a stone or piece of timber into the street in a populous town, where people were continually passing, and killed a per

son, were murders, for the law presumed the intent to kill, or rather held that the parties intended the probable consequences of their act. These cases are considered in East's Pleas of the Crown, under the head of homicide, from a general malice or depraved inclination to mischief, fall where it may, in which cases the intent to kill is presumed. "The act itself must be unlawful, attended with probable serious danger, and must be done with a mischevious intent to hurt people, in order to make the killing amount to murder in these cases, for it is from these circumstances that the malice is to be inferred." "But if an unlawful and dangerous act, manifestly so appearing, be done deliberately, the mischevious intent will be presumed, unless the contrary be shown." Vol. I, 231; see, also, 235, 236.

In every case of murder at common law there was an intent to kill, either express or implied, and where all the circumstances, when the intent was not conclusively presumed, showed that no such intent existed, the homicide, if not justifiable or excusable, was but manslaughter. A and B, acquaintances, between whom no trouble has occurred and no ill-feelings exist, stand talking on the street. A tells B that he lies; B, with a heavy stick, the use whereof will not probably result in death, with no intention to kill, strikes A upon the head and kills him. Blackstone and East say that the crime of which B is guilty is manslaughter and not murder. "Words of reproach, how grievous soever, are not provocatives sufficient to free the party killing from the guilt of murder, nor are contemptuous or insulting actions or gestures without an assault upon the person, nor is any trespass against land or goods. This rule governs every case where the party killing upon such provocation made use of a deadly weapon, or otherwise manifested an intention to kill, or to do some great bodily harm. But if he had given the other a box on the ear, or had struck him with a stick, or other weapon not likely to kill, and had, unluckily, and against his intention, killed him, it had been but manslaughter, for no malignant intention can be collected from such acts." East's Pleas of the Crown, 233. To the same effect, Blackstone's Com. 201.

As the above supposed case was but manslaughter at common law, it, of course, could not be murder in either degree, under our statute. On page 256, East's Pleas of the Crown, a case is stated seemingly in conflict with all the cases cited, and with the doctrine maintained by him, thus: "He who voluntarily, knowingly and unlawfully intends hurt to the person of another, though he intends not death, yet is guilty of murder or manslaughter, according to circumstances, if death ensues. As if A, intending to beat B, happened to kill him, if done from preconceived malice, or in cool blood upon revenge, it will be no alleviation that he did not intend all the mischief that followed." But he immediately qualified it so that it harmonizes with the other cases put by him and with his own doctrine, thus: "But the nature of the instrument and the man

ner of using it as calculated to produce great bodily harm or not, will vary the offense in all such cases."

"If the beating, however wrongful, was neither with a deadly weapon nor carried to a degree evidently dangerous, and there was no intent to kill, but, unfortunately, death followed, the offense would amount only to manslaughter." 2 Bishop's Criminal Law, sec. 716. "Is the act both wrongful and in its nature dangerous to life?" "This, in a large class of cases, is the test. Thus, where the defendant is wilfully committing a mere criminal misdemeanor; yet, if the misdemeanor is one endangering human life, the accidental causing of death is murder." 2 Bishop, sec. 717. In section 718, the same learned author says: "The doctrine of these cases does not wholly exclude consideration of the intent. If the act were not calculated directly to be dangerous to life, yet if it were done with the motive of committing a misdemeanor, the offense must be manslaughter." But it is unnecessary to extend this discussion. As there can be no murder without malice, express or implied, so there there can be no murder without an intention to kill, express or implied. This proposition we think is fully sustained by the authorities cited. See, also, The People v. Austin, 1 Parker's Crim. Reports, 162.

What, then, is murder in the second degree? It is the unlawful killing of a human being, with malice aforethought, but without deliberation. It is, where the intent to kill is, in a heat of passion, executed the instant it is conceived or before there has been time for the passion to subside. We do not use the phrase "heat of passion" in its technical sense, but as a condition of mind contra-distinguished from a cool state of the blood. Take the case of A and B, who had been on friendly terms, but they have an altercation in which A calls B a liar, and with a pistol or other deadly weapon, B instantly, in a passion, engendered by the insult, kills him. This, at common law, was murder, but, lacking the element of deliberation, it is, under our statute, murder in the second degree. At common law there were instances of provocations not amounting to an assault upon the person which extenuated the guilt of homicide," or, to speak more properly, they serve to explain the act and rebut the presumption of malice." 1 East. 235, where instances are given. See, also, United States v. Wilberger, Washington Circuit Court Rep. 521.

Premeditation means thought of beforehand, even for a moment, and as an intent to kill must be preceded by an operation of the mind which produced that intent, it is argued plausibly that every intentional killing which is not excusable or justifiable must be murder in the first degree, because the malice exists if the act is without excuse. But this argument overlooks the consideration, that not only premeditation, but malice aforethought and deliberation are necessary elements of murder in the first degree.

Murder in the second degree is such a homicide as would have been murder in the first degree if committed deliberately, but having been committed

in a passion, in obedience to a sudden impulse, engendered by a real or supposed grievance, and not for gain or pre-existing revenge, the law, out of consideration for the weakness of human nature, esteems it as a crime of lower grade than such willful, deliberate homicides, as in common parlance are denominated cold-blooded murders.

"Premeditation and deliberation " are not synonyms, and a homicide may be premeditated without being deliberately committed. "Malice aforethought," says Bishop in his Criminal Law, is a technical phrase employed in indictments, and with the word murder distinguishes the killing called murder from what is called manslaughter. When our statute declares that every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, etc., shall be murder in the first degree," it certainly meant that the "other kind of willful, deliberate and premeditated killing" should be of the nature of that perpetrated by lying in wait, or by poison, of the same willful, deliberate and premeditated character. The common law made no distinction betwixt the guilt of the poisoner, or the assassin who shot his victim from ambush, or the robber who killed for gain, and the man who, under the influence of a momentary passion, engendered by a real or supposed grievance, on the instant that the insult or provocation was given, slew the supposed aggressor. The common sense of mankind makes a distinction and regards the poisoner and assassin with abhorrence and loathing, but while condemning the act of the man who slays in passion, without sufficient cause, regards him as far less criminal than the man who murders for gain or poisons, or assassinates for revenge. To this common sentiment of mankind our legislature has yielded and distinguished between such murders. As was said by the Supreme Court of Kansas, in Craft v. The State of Kansas, 3, Kansas R., speaking of the provisions of the statutes of that states similar to ours: "To constitute murder at common law there must be malice prepense aforethought, i. e., an unlawful intention to take life must precede the killing. But deliberation and premeditation' were not necessary ingredients. The same penalty was provided for killing with malice aforethought that was inflicted for malicious, deliberate and premeditated killing. The law recognized no degrees of atrocity in the crime. The law-makers of this state, as did those of other states, thought they ought to recognize some difference in the degrees of malignity with which the killing was done, and upon that basis they undertook to divide murder at common law into two degrees, so that the punishment might, to some extent, be proportioned to the moral depravity manifested in the commission of crime."

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Of murder of the second degree are also all those cases of murder at common law, in which there was no specific intention to kill, but the law presumed the intent to kill which are not declared manslaughter in one of the four degrees, by our statute, and not committed in perpetrating or attempting to perpetrate a felony, as provided by the

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