Classification of misdemeanors.
Classification of forfeitures.
Felony and misdemeanor defined.
Penalty when none expressed.
Lifetime supervision of serious sex offenders.
Increased penalty for habitual criminality.
Increased penalty for certain domestic abuse offenses.
Committing a serious sex crime while infected with acquired immunodeficiency syndrome, HIV or a sexually transmitted disease.
Increased penalty; repeat serious sex crimes.
Increased penalty; repeat serious violent crimes.
Increased penalty for criminal gang crimes.
Penalties; use of a dangerous weapon.
Penalties; violent crime in a school zone.
Penalties; assault or battery in secured juvenile facilities or to aftercare agent.
Penalties; use of bulletproof garment.
Penalty; concealing identity.
Penalty; crimes committed against certain people or property.
Penalty; crimes committed using information obtained from the sex offender registry.
Increased penalty; violent felony committed against elder person.
RIGHTS OF THE PROSECUTION.
Prosecution under more than one section permitted.
Conviction of included crime permitted.
RIGHTS OF THE ACCUSED.
Presumption of innocence and burden of proof.
Limitation on the number of convictions.
No conviction of both inchoate and completed crime.
Criminal penalty permitted only on conviction.
Time limitations on prosecutions.
Death or harm to an unborn child.
Ch. 939 Note
NOTE: 1987 Wis. Act 399
included changes in homicide and lesser included offenses. The sections affected had previously passed the senate as 1987 Senate Bill 191, which was prepared by the Judicial Council and contained explanatory notes. These notes have been inserted following the sections affected and are credited to SB 191 as "Bill 191-S". These notes do not appear in the 1987-88 edition of the Wisconsin Statutes.
Name and interpretation. Chapters 939
may be referred to as the criminal code but shall not be interpreted as a unit. Crimes committed prior to July 1, 1956, are not affected by chs. 939
History: 1979 c. 89
; 1987 a. 332
Jurisdiction of state over crime. 939.03(1)
A person is subject to prosecution and punishment under the law of this state if:
The person commits a crime, any of the constituent elements of which takes place in this state; or
While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state; or
While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime; or
While out of this state, the person steals and subsequently brings any of the stolen property into this state.
History: 1983 a. 192
; 1993 a. 486
Jurisdiction over a crime committed by a Menominee Indian while on the Menominee Indian Reservation is discussed. State ex rel. Pyatskowit v. Montour, 72 Wis. 2d 277
, 240 N.W.2d 186
Treaties between the federal government and Menominee tribe do not deprive the state of criminal subject matter jurisdiction over a crime committed by a Menominee outside the reservation. Sturdevant v. State, 76 Wis. 2d 247
, 251 N.W.2d 50
Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528
, 280 N.W.2d 316
(Ct. App. 1979).
A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi River was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855
, 285 N.W.2d 924
(Ct. App. 1979)
The state has exclusive jurisdiction over 2nd offense drunk driving. A 2nd time offender may not be charged as a 1st offender under a local ordinance. County of Walworth v. Rohner, 108 Wis. 2d 713
, 324 N.W.2d 682
An unlawful arrest does not deprive court of personal jurisdiction over defendant. State v. Smith, 131 Wis. 2d 220
, 388 N.W.2d 601
Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 Wis. 2d 206
, 548 N.W.2d 134
(Ct. App. 1996).
Objections to subject matter jurisdiction that turn on a question of law may not be waived by a guilty plea, but objections to subject matter jurisdiction based on a factual dispute do not survive. State v. Bratrud, 204 Wis. 2d 445
, 555 N.W.2d 662
(Ct. App. 1995).
A trial court did not lose subject matter jurisdiction over a count in a criminal complaint when an oral amendment of the count did not include one of the elements of the new offense. State v. Diehl, 205 Wis. 2d 1
, 555 N.W.2d 174
(Ct. App. 1996).
A sentencing court is accorded incidental powers necessary to carry out its judicial functions and may modify an improper sentence, but it is not competent to enter a money judgment against the state for the recovery of improperly collected restitution under an improper sentence. State v. Minniecheske, 223 Wis. 2d 493
, 590 N.W.2d 17
(Ct. App. 1998).
For purposes of jurisdictional analysis, the defendant father's concealment in Canada of a child taken from the child's mother in Wisconsin was inseparable from the consequences of the concealment in Wisconsin, thus giving a Wisconsin court jurisdiction under sub. (1) (c) to try the defendant for a violation of s. 948.31. State v. Inglin, 224 Wis. 2d 764
, 592 N.W.2d 666
(Ct. App. 1999).
Parties to crime. 939.05(1)(1)
Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
A person is concerned in the commission of the crime if the person:
Intentionally aids and abets the commission of it; or
Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.
History: 1993 a. 486
It is desirable but not mandatory that an information refer to this section where the district attorney knows in advance that a conviction can only be based on participation and the court can instruct and the defendant can be convicted on the basis of the section in the absence of a showing of adverse effect on the defendant. Bethards v. State, 45 Wis. 2d 606
, 173 N.W.2d 634
It is not error that an information charging a crime does not also charge the defendant with being a party to a crime. Nicholas v. State, 49 Wis. 2d 683
, 183 N.W.2d 11
Under sub. (2) (c) a conspirator is one who is concerned with a crime prior to its actual commission. State v. Haugen, 52 Wis. 2d 791
, 191 N.W.2d 12
A complaint charging the defendant as a party to the crime of theft that alleged that an unidentified man stole property and gave it to the defendant who passed it on was insufficient. There must be an allegation that the defendant knew of the commission of the crime. State v. Haugen, 52 Wis. 2d 791
, 191 N.W.2d 12
An information charging the defendant with being a party to a crime need not set forth the particular subsection relied upon. A defendant can be convicted of 1st degree murder under this statute even though he claims that he only intended to rob and an accomplice did the shooting. State v. Cydzik, 60 Wis. 2d 683
, 211 N.W.2d 421
The state need not elect as to which of the elements of the charge it is relying on. Hardison v. State, 61 Wis. 2d 262
, 212 N.W.2d 103
Evidence establishing that the defendant's car was used in a robbery getaway was sufficient to convict the defendant of armed robbery, party to a crime, where the defendant admitted sole possession of the car on the night of the robbery. Taylor v. State, 74 Wis. 2d 255
, 246 N.W.2d 518
Conduct undertaken to intentionally aid another in the commission of a crime and which yields such assistance constitutes aiding and abetting the crime and whatever it entails as a natural consequence. State v. Asfoor, 75 Wis. 2d 411
, 249 N.W.2d 529
Defendants may be found guilty under sub. (2) if, between them, they perform all of the necessary elements of the crime with awareness of what the others are doing; each defendant need not be present at the scene of the crime. Roehl v. State, 77 Wis. 2d 398
, 253 N.W.2d 210
This section applies to all crimes except where legislative intent clearly indicates otherwise. State v. Tronca, 84 Wis. 2d 68
, 267 N.W.2d 216
Proof of a "stake in the venture" is not needed to convict under sub. (2) (b). Krueger v. State, 84 Wis. 2d 272
, 267 N.W.2d 602
A jury need not unanimously agree whether defendant: (1) directly committed the crime, (2) aided and abetted its commission, or (3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134
, 280 N.W.2d 288
An aider and abettor who withdraws from a conspiracy does not remove himself or herself from aiding and abetting. May v. State, 97 Wis. 2d 175
, 293 N.W.2d 478
A party to a crime is guilty of that crime whether or not that party intended that crime or had the intent of its perpetrator. State v. Stanton, 106 Wis. 2d 172
, 316 N.W.2d 134
(Ct. App. 1982.)
The elements of complicity are undertaking conduct that will aid another in the execution of the crime and a conscious desire that the conduct will yield that aid. State v. Hecht, 116 Wis. 2d 605
, 342 N.W.2d 721
Testimony concerning a party to the crime defendant's whereabouts during planning sessions for the crime was not an alibi and did not require a notice of alibi under s. 971.23 (8). State v. Horenberger, 119 Wis. 2d 237
, 349 N.W.2d 692
Depending on the facts of the case, armed robbery can be a natural and probable consequence of a robbery. In that case, an aider and abettor need not have had actual knowledge that the principals would be armed. State v. Ivey, 119 Wis. 2d 591
, 350 N.W.2d 622
Sub. (1) (c) may be violated where the defendant solicits a 2nd person to procure a 3rd person to commit a crime. State v. Yee, 160 Wis. 2d 15
, 465 N.W.2d 260
(Ct. App. 1990).
Individual officers are personally responsible for criminal acts committed in the name of a corporation. State v. Kuhn, 178 Wis. 2d 428
, 504 N.W.2d 405
(Ct. App. 1993).
A defendant may be guilty of felony murder, party to a crime, where the defendant participates with an accomplice in a felony listed in s. 940.03 and the accomplice kills another. There is no requirement that the defendant have an intent to kill, or directly cause the death. State v. Rivera, 184 Wis. 2d 485
, 516 N.W.2d 391
(1994), State v. Chambers, 183 Wis. 2d 316
, 515 N.W.2d 531
(Ct. App. 1994), State v. Oimen, 184 Wis. 2d 423
, 516 N.W.2d 399
(Ct. App. 1994).
The unanimity requirement was satisfied when the jury unanimously found that the accused participated in the crime. Lampkins v. Gagnon, 710 F. 2d 374
This section does not shift the burden of proof. The prosecution need not specify which paragraph of sub. (2) it intends to proceed under. Madden v. Israel, 478 F. Supp. 1234
Liability for coconspirator's crimes in the Wisconsin party to a crime statute. 66 MLR 344 (1983).
Application of Gipson's unanimous verdict rationale to the Wisconsin party to a crime statute. 1980 WLR 597.
Wisconsin's party to a crime statute: The mens rea element under the aiding and abetting subsection, and the aiding and abetting-choate conspiracy distinction. 1984 WLR 769.