On September 4, 1957, two criminal proceedings were commenced against Elric Carlson (aged seventeen) after waiver of jurisdiction by the children's court. In municipal court the proceedings were numbered E-9711 and E-9712. They were tried at the same time. In No. E-9711 the information charged Carlson with violation of sec. 943.02 (1) (a), Stats. (arson of a building). In No. E-9712 the information charged violation of sec. 940.03, Stats. (third-degree murder, causing a death as a consequence of the arson charged in No. E-9711). In each proceeding the defendant pleaded not guilty and not guilty by reason of insanity. Separate verdicts were returned, guilty of each offense. On December 13, 1957, Carlson was sentenced to imprisonment for not more than fifteen years for arson and not more than thirty years for murder in the third degree, the terms to run concurrently. Defendant appealed.

In the early morning of September 1, 1957, a serious fire occurred at the home of Frank Haecker at 3053 North Booth street in the city of Milwaukee. Bernice Bonner, who lived with her husband in a second-floor apartment in the building, died as a result of the fire.

The fire was at the rear of the building and the officers of the fire department particularly examined an inclosed area at the rear where steps go down to the basement and there are wooden stairs leading to the first and second floors. The cause of the fire could not be determined.

Carlson had been seen at the fire by a neighbor and after several of the neighbors were interviewed, the police picked Carlson up on Tuesday morning, September 3d. He was asked about his activities on Saturday, August 31st. After relating what he had done during that day in the company of an uncle, he said that they had returned to the uncle's home at 3829 North Hubbard at about 11:30 p. m. He said that he later took a bus to Holton and Locust streets (a few blocks from the Haecker home), went to a restaurant, and had a hamburger and lemonade. Hearing a siren he went with another man in the direction of the siren and ultimately arrived at the fire.

The officers indicated to him that they thought he was not telling the truth and it was then planned to take him to Okauchee lake, one of the places he said he had been on Saturday, to check. One of the officers then urged him to clear up anything that was bothering him; he started to cry and said he could remember squeezing the matches and the candles when he ran away; that he did not get the idea of starting the fire until he was at the rear of the Haecker home.

Carlson explained that he had struck a match, lit a bag, and the light from the flame revealed two candles; that he lit one candle and held it under an inner tube until the inner tube began to hiss and bubble. He said he then became frightened, tried to squeeze out the fire, and ran away. He said the inner tube was underneath the steps in the inclosure at the rear of the Haecker home. He described the route he followed and the places where he discarded the matches and candles.

Carlson and the officers next went to the Haecker home and he pointed out the place where he had started the fire. He then showed them where he had discarded the matches next to an ash box and the officers picked up book matches imprinted with the name, address, and business of Carlson's uncle. The two candles were also retrieved from a sewer which he pointed out. Later, again at the rear of the Haecker home, Carlson went through the procedure of pretending to strike a match, light a paper bag, pick up two candles, light one of them, and start the inner tube on fire. A fireman found a burned portion of a rubber inner tube, the portion measuring about six by four inches. It was found in the rear hallway underneath the stairs.

Still later, at the safety building, Carlson was questioned and the questions and answers taken down and typewritten. In this statement Carlson told of going to the restaurant after he left his uncle's, then going to Haeckers; going down toward the basement, finding the inner tube underneath the stairs, and lighting the matches and candle. He also said that after running away he returned to the same restaurant. Portions of the transcript of his statement are as follows:

" Q. . . . Now, when you were under this steps did you light the matches there to set this tire and this box afire? A. I lit the match, I don't know what for. When I seen it I was going to make a fire of it. I lit the bag, that burned away. There was the candles there. . . .

" Q. As you lit the candle was this fire still burning or did you smother it? A. The paper went out, everything was out. When I lit the candle I put it under the inner tube and that started.

" Q. And after the inner tube started to burn what did you do? A. Wanted to put it out and run. . . .

" Q. When you ran out from under this steps, do you know if there was any flame before you left? A. Not a single spark, and I grabbed it and squeezed it and ran, and it didn't appear that there was fire, but there might have been a flame on the inside that I didn't see.

" Q. It must have been afire because it burned, is that right? A. Yes. . . .

" Q. Did you try to save anyone or help to save anyone from this fire? A. If I knew it was my doings, I would have.

" Q. Can you tell me why you went into the Haecker home and started this fire under the steps? A. I don't know.

" Q. Have you any reason for starting a fire there? A. No, they are some of the only few friends I have. . . .

" Q. Can you give me any reason now why you went there Saturday night about 12:30 and started this fire under their steps? A. No, I can't.

" Q. Have you any reason for that, Elric? A. No reason at all. . . .

" Q. Elric, can you tell me now why you started this fire, any reason why you did? A. No.

" Q. Can't you explain that at all? A. I wish I could."

At the trial, Carlson testified that he went to the restaurant, had a hamburger and lemonade, walked to Haecker's, noticed there was no light, remembered an inner tube he had seen underneath the steps when he was there earlier in the week and had thought of asking for. He wanted it to take to the lake so that his little cousin could use it for swimming. He went down toward the basement, lit a match to see where the tube was, held the match too long and burned his fingers. He threw the match away and it ignited a paper bag but the burning bag did no damage. He intended to use his matches to examine the tube for leakage of air. He saw the candles, lit one, and held it to the left of the tube so that he could tell if there was any escaping of air. The flame flickered; he wasn't sure whether air was escaping so he held the candle closer; then the tube started to smolder and opened up and started to burn away. He put out the candle and squeezed the inner tube with his hand, pushing the sides around the fire to smother it. He then left, taking the candles. He returned to the restaurant, made a remark about the clock not being on the wall, and the waiter looked at his watch and said that it was twenty-five minutes to one. Carlson washed his hands, played some selections on the juke box, and had a hamburger and lemonade, the same as on the first occasion when he was in the restaurant. He heard the fire trucks just as he was finishing. He testified that he had told the police officers at first that he could not have started the fire. The reason he said that was that he "was pretty positive that I had extinguished that little bit that I had there."

He said that later,

"I found out I was responsible for this disaster.

" Q. Did they tell you that you were responsible for it? A. No, I mean they told me where it started, that's where it started and I was down there — well, I don't think anybody else could have done it."

Carlson was born September 10, 1939. His mother had been in a hospital for the mentally ill on several occasions. His parents were divorced in 1941. He had seen his mother only a few times during his life and had lived with his father for several periods of a few months or a few years at a time. Much of the time he was cared for in institutions. When he was living with his father, he got into various difficulties in school. In September, 1956, after a disappointment about a girl, he jumped from a bridge into a lake while clothed, but swam ashore. Later that month he joined the navy and was stationed at Great Lakes. He had some interest in Irene, one of the Haecker daughters, and had a date with her. At about the same time at New Year's 1957, he ran in front of an automobile. He was knocked down and sustained a concussion of the brain. He was in the emergency hospital at Milwaukee for a few hours and then was in the hospital at Great Lakes until March. A week after release from the hospital he sought help and was placed in the hospital for observation. In July, 1957, he was given a medical discharge. The rest of that summer he had a job in Milwaukee and lived in a rented room near his uncle's home.

He had become acquainted with the Haeckers some years previously, having lived near them on one of the occasions while with his father.

Irene testified that he came to the Haecker home fairly often; that they were not always on friendly terms; that once in a while she told him to leave. Her sister testified that on the afternoon before the fire Carlson had telephoned for the purpose of speaking with Irene. Irene's mother testified that she had asked Carlson not to come to their home so often. He had Irene's nickname tattooed on his arm. He had been at their home approximately one week before the fire.

Lt. Burk, a navy doctor stationed at Great Lakes, testified that he had had Carlson under his care. Dr. Burk was a member of the medical survey board which recommended Carlson's discharge. The board considered Carlson unsuitable for service because of a schizoid personality but that he did not constitute a menace to himself or others.

Three psychiatrists were appointed by the court before trial to examine defendant as to his mental condition. They reported that he was sane, was not feeble-minded, could distinguish right from wrong, realized the nature and quality of his acts, and could confer with counsel. They testified, however, in addition, that he was a sex deviate and two of them indicated that in their opinion he had experienced sexual gratification as a result of the fire. This testimony, of course, was not given in the presence of the jury. The same psychiatrists, again appointed by the court, examined Carlson on several other occasions and were present throughout the trial. They testified upon the trial that in their opinion Carlson was sane at the time of the alleged offense; that he had the capacity to distinguish between right and wrong and was conscious of the nature and quality of his acts.

While defendant was awaiting trial, defendant was tested at his own request by means of an electroencephalograph. Dr. Jean Davis who supervised the test was called as a witness on defendant's behalf. She described the test: Small electrodes are applied to the scalp at various positions and they in turn are connected by wires to the machine. Operating something like a radio, the machine amplifies the electrical discharges originating from the brain cells and transfers them into impulses which are recorded by pen and ink. The impulses from the brain are in millionths of a volt and must be amplified considerably in order to be measured.

The state objected to any testimony by her describing the results and interpretations of the test. An offer of proof was made in the absence of the jury. Dr. Davis read the laboratory interpretation of Carlson's brain tracing and indicated that it showed a brain abnormality that was probably of organic origin, resulting from brain trauma. She could not state from her findings that the defendant did not know the difference between right and wrong and she testified that the findings did not indicate any mental disease in Carlson.

The record of the testimony upon the offer of proof does not show any clear statement of an opinion by Dr. Davis concerning the relationship between the brain abnormality which she found and the unacceptable or criminal conduct Carlson might engage in. If we understand the testimony correctly, it was Dr. Davis' opinion that disturbances of the type she found in Carlson are found in individuals who have an organic condition acquired early in life from one of several possible causes plus emotional background consisting of instability of the individual's environment. "The result is disturbances of behavior which consist of irresistible impulses, behavior over which they have virtually no control. They have an impulse to carry out an act and they have no control, they can't stop it until they have carried it out to completion. In patients who demonstrate this kind of disturbance, severe problems such as attempted suicide, assaultive behavior, combative behavior, and attempted larceny and even murder have been recorded in cases which have been under observation."

She also stated that the electrical changes recorded by the electroencephalograph arise from the organic cause and that the emotional factors cause the "rage reaction, the impulsive behavior, the irresistible impulses that these individuals show, they lack normal control."

The court, after hearing the offer of proof, sustained the objection, evidently upon two grounds: (1) That the results of the tracing would be of no probative value except as preliminary to further testimony and (2) that if the findings tended to prove that any misconduct of defendant would be attributable to irresistible impulse rather than lack of ability to distinguish between right and wrong, her testimony would not be relevant to the issue of insanity as recognized in Wisconsin.

FAIRCHILD, J.

Four questions are presented: (1) Was there sufficient proof of intent? (2) Were certain photographs merely cumulative and improperly received? (3) Was it prejudicial error to exclude testimony of Dr. Davis concerning the results of the electroencephalographic tests? (4) Could defendant properly be convicted of both arson and third-degree murder?

(1) Proof of intent. Sec. 943.02 (1) (a), Stats., provides for the punishment of anyone who "by means of fire, intentionally damages any building of another without his consent." Sec. 939.23 (3) provides in part: "`Intentionally' means that the actor either has a purpose to do the thing or cause the result specified or believes that his act, if successful, will cause that result."

It is virtually conceded that Carlson's activity under the stairway caused the fire and the damage to the Haecker house. It is clear that the fire was a natural and probable consequence of acts which he admitted to the officers, i.e., lighting a paper bag and holding a lighted candle to an inner tube until it began to burn. It is true that in all his statements and testimony, Carlson said he tried to extinguish the fire in the tube before leaving the scene and that upon the trial he testified that both the bag and the tube were ignited accidently as a result of innocent (even if negligent) acts. The jury was not bound to believe either of these statements. State v. Kuenzli (1932), 208 Wis. 340, 347, 242 N.W. 147. There were also several facts which might tend to discredit his statements. Among others: Carlson's running away, his disposal of the matches and candles, his return to the restaurant, and remaining there until the fire was discovered, and his failure to give the officers the explanation which he gave on the trial.

The law presumes that a person intends the natural and probable consequences of his own acts but the presumption may be rebutted. State v. Vinson (1955), 269 Wis. 305, 309e, 68 N.W.2d 712, 70 N.W.2d 1. Carlson, by his statements to the officers, furnished proofs of acts by him which caused the fire as a natural and probable consequence. At the trial he endeavored to rebut the presumption by ascribing an innocent purpose to his acts and by describing the acts somewhat differently from the way he described them to the officers. He failed to raise a reasonable doubt in the minds of the jurors.

The defendant also claims that the court did not correctly instruct the jury on the matter of intent. He points to no misstatement nor material omission. We have reviewed the portions of the instructions which dealt with this matter and find no error prejudicial to defendant. The court informed the jury of the presumption to which we have referred but limited it by saying, "when there are no circumstances to prevent or rebut the presumption." The court also told the jury: "Of course you may weigh on the question of such intent the sworn testimony . . . as to the statements against interest, if any, made by the defendant, and you may also weigh on such question of intent the defendant's testimony given on the trial." The court also instructed the jury on its duty to acquit if not satisfied beyond a reasonable doubt that defendant intentionally damaged the building by fire. The jury must be informed of the rebuttable character of the presumption, Melli v. State (1936), 220 Wis. 419, 265 N.W. 79, and the court did so.

(2) Photographs. The state offered 15 photographs of portions of the Haecker home showing the damage done by the fire, including several of the second-floor apartment where Mrs. Bonner's body had been found. They were received over objection and (except for one which bore markings about which there had been no testimony) were sent to the jury room when the jury retired for its deliberations. Defendant asserts that there was an abundance of testimony to prove the fire and the death without these pictures and that the pictures may have caused the jury to find intent improperly because it was so impressed with the extent of the fire. The trial court found nothing "patently gruesome or that would inherently tend to shock the jury."

It is undoubtedly true that the existence of the fire, its concentration at the rear of the building, and the fact that it caused Mrs. Bonner's death were sufficiently established by testimony without pictures. Nevertheless, they were material evidence and the court did not abuse its discretion in receiving them.

(3) Testimony concerning electroencephalograph, tests. The offer of Dr. Davis' testimony is described in the statement of facts. The only finding she stated which related specifically to defendant was that the tracing showed an organic abnormality in his brain. It appears that one of the reasons stated by the trial court for sustaining the objection was that the results of the test, standing alone without other medical testimony, would be of no probative value. We agree. Except for the finding just referred to, the testimony was in general terms indicating that tracings like defendant's are seen in individuals who experienced various diseases or injuries early in life, who had an emotional background of an unstable environment, and in whom the emotional factors produce disturbances of behavior which consist of irresistible impulses. No medical opinion was offered, based upon the tracing, the facts as to defendant's background and early life, and the circumstances of the alleged offense, as to defendant's mental capacity or condition at the time of the offense.

The court did give as a further reason for rejecting Dr. Davis' testimony that it appeared that she would attribute any misconduct to irresistible impulse, rather than lack of ability to distinguish between right and wrong, and only the latter is the test of insanity under Wisconsin law. While defendant's brief on appeal suggests that we must someday broaden the so-called M'Naghten rule or right-wrong test for insanity, it also says, "The defendant did not raise the argument of the irresistible-impulse theory nor did he wish to advance such argument. His only contention was that the jury was entitled to weigh all the evidence; that certainly it was pertinent on the issue of defendant's capacity to form the requisite intent."

The offered testimony suggests no reason why defendant could not form an intent to burn a building nor does it tend to rebut the presumption that he intended the natural and probable consequences of his acts.

Although defendant has not urged us to review the rule that the test of insanity as a defense to a charge of crime is inability to distinguish between right and wrong or inability to know the nature and quality of one's acts, we have given some consideration to the subject. Some members of the court are of the opinion that this rule should be modified so that a defendant is to be found insane if an abnormal condition of the mind renders him incapable of conforming his conduct to that which he deems right. All members, however, agree that this question was not raised in the trial court, nor here, and should not be decided in this case. We are of the opinion, however, that if the offered testimony, together with other expert testimony, had sufficiently tended to prove that at the time of the offense defendant was subject to a compulsion or irresistible impulse by reason of the abnormality of his brain, the testimony should have been admitted. Even under the right-wrong test, no evidence should be excluded which reasonably tends to show the mental condition of the defendant at the time of the offense.

(4) Separate convictions of arson and third-degree murder. The attorney general suggests that defendant should not have been convicted of both arson and third-degree murder. We agree. Because the sentences were made concurrent, we are not aware of any way in which defendant can be injured by this error, but for the purpose of clarifying the record, we reverse the judgment based on the separate conviction of arson.

Sec. 940.03, Stats., provides:

"Whoever in the course of committing or attempting to commit a felony causes the death of another human being as a natural and probable consequence of the commission of or attempt to commit the felony, may be imprisoned not more than fifteen years in excess of the maximum provided by law for the felony."

This statute entitled "Third-degree murder" provides for increase in the maximum penalty for the felony referred to, in this case, arson. See discussion in 1956 Wisconsin Law Review, 350, 370. Putting it in different words, third-degree murder is a combination of a felony or attempted felony, and the fact that in the commission or attempt, a death was caused. The information charging defendant with third-degree murder in effect charged the arson and alleged the causing of the death as an additional element affecting the maximum sentence; the verdict of guilty of third-degree murder in effect found the defendant guilty of arson and of the additional element of causing the death; upon such conviction the defendant was properly sentenced to imprisonment for not more than thirty years (fifteen, the maximum for the arson under sec. 943.02, plus fifteen, the additional number of years provided by sec. 940.03). There was no occasion for a separate information charging arson and if the two proceedings had been tried separately, jeopardy in the first would have been a defense in the second.

As suggested by the attorney general, ". . . the correct procedure would be in the first instance to bring but one single charge of third-degree murder and for the court to submit to the jury verdicts of third-degree murder, arson, and not guilty. The arson could properly be submitted to the jury because it is an included crime within the meaning of sec. 939.66 (1) of the Criminal Code. But the jury should be instructed to sign but one verdict, so that if they found the defendant guilty of third-degree murder they would make no finding with respect to the separate form of verdict of arson. On the other hand if they found the defendant not guilty of third-degree murder they might still find him guilty of arson, if they found that he set the fire but that it did not cause the death."

By the Court. — Judgment upon conviction of third-degree murder (No. E-9712) affirmed; judgment upon conviction of arson (No. E-9711) reversed.

BROWN, J., took no part.