939.22(48)
(48) "Without consent" means no consent in fact or that consent is given for one of the following reasons:
939.22(48)(a)
(a) Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the victim's immediate family; or
939.22(48)(b)
(b) Because the actor purports to be acting under legal authority; or
939.22(48)(c)
(c) Because the victim does not understand the nature of the thing to which the victim consents, either by reason of ignorance or mistake of fact or of law other than criminal law or by reason of youth or defective mental condition, whether permanent or temporary.
939.22 History
History: 1971 c. 219;
1973 c. 336;
1977 c. 173;
1979 c. 89,
221;
1981 c. 79 s.
17;
1981 c. 89,
348;
1983 a. 17,
459;
1985 a. 146 s.
8;
1987 a. 332,
399;
1993 a. 98,
213,
227,
441,
486;
1995 a. 69,
436,
448.
939.22 Annotation
It was for the jury to determine whether a soft drink bottle, with which the victim was hit on the head, constituted a dangerous weapon. Actual injury to the victim is not required. Langston v. State, 61 W (2d) 288, 212 NW (2d) 113.
939.22 Annotation
Unloaded pellet gun qualifies as "dangerous weapon" under (10) in that it was designed as a weapon and, when used as a bludgeon, is capable of producing great bodily harm. State v. Antes, 74 W (2d) 317, 246 NW (2d) 671.
939.22 Annotation
Jury could reasonably find that numerous cuts and stab wounds constituted "serious bodily injury" under (14) even though there was no probability of death, no permanent injury, and no damage to any member or organ. La Barge v. State, 74 W (2d) 327, 246 NW (2d) 794.
939.22 Annotation
Jury must find that acts of prostitution were repeated over enough or were continued long enough in order to find that premises are "a place of prostitution" under (24). Johnson v. State, 76 W (2d) 672, 251 NW (2d) 834.
939.22 Annotation
Sub. (14), either on its face or as construed in La Barge v. State, 74 W (2d) 327, is not unconstitutionally vague. Cheatham v. State, 85 W (2d) 112, 270 NW (2d) 194 (1978).
939.22 Annotation
Definitions of "under the influence" in this section and in 346.63 (1) (a) are equivalent. State v. Waalen, 130 W (2d) 18, 386 NW (2d) 47 (1986).
939.22 Annotation
To determine whether infant was "born alive" under (16) for purposes of the homicide laws, court applies 146.71. State v. Cornelius, 152 W (2d) 272, 448 NW (2d) 434 (Ct. App. 1989).
939.22 Annotation
Dog may be dangerous weapon under (10). State v. Sinks, 168 W (2d) 245, 483 NW (2d) 286 (Ct. App. 1992).
939.22 Annotation
Portions of the defendant's anatomy are not dangerous weapons under sub. (10). State v. Frey, 178 W (2d) 729, 505 NW (2d) 786 (Ct. App. 1993).
939.22 Annotation
An automobile may constitute a dangerous weapon under sub. (10). State v. Bidwell, 200 W (2d) 200, 546 NW (2d) 507 (Ct. App. 1996).
939.23
939.23
Criminal intent. 939.23(1)(1) When criminal intent is an element of a crime in
chs. 939 to
951, such intent is indicated by the term "intentionally", the phrase "with intent to", the phrase "with intent that", or some form of the verbs "know" or "believe".
939.23(2)
(2) "Know" requires only that the actor believes that the specified fact exists.
939.23(3)
(3) "Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition, except as provided in
sub. (6), the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally".
939.23(4)
(4) "With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.
939.23(5)
(5) Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section.
939.23(6)
(6) Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.
939.23 Note
Judicial Council Note, 1988: Subs. (3) and (4) are conformed to the formulation of s. 2.02 (2) (b) ii of the model penal code. [Bill 191-S]
939.23 Annotation
A person need not foresee or intend the specific consequences of his act in order to possess the requisite criminal intent and he is presumed to intend the natural and probable consequences. State v. Gould, 56 W (2d) 808, 202 NW (2d) 903.
939.23 Annotation
See note to 903.03 citing Muller v. State, 94 W (2d) 450, 289 NW (2d) 570 (1980).
939.23 Annotation
Court properly refused to instruct jury on "mistake of fact" defense where accused claimed that victim moved into path of gunshot intended only to frighten victim. State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
939.23 Annotation
See note to 951.02, citing State v. Stanfield, 105 W (2d) 553, 314 NW (2d) 339.
939.23 Annotation
Constitutionality of sub. (3) upheld. State v. Smith, 170 W (2d) 701, 490 NW (2d) 40 (Ct. App. 1992).
939.24
939.24
Criminal recklessness. 939.24(1)
(1) In this section, "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.
939.24(2)
(2) Except as provided in
ss. 940.285,
940.29 and
940.295, if criminal recklessness is an element of a crime in
chs. 939 to
951, the recklessness is indicated by the term "reckless" or "recklessly".
939.24(3)
(3) A voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness if, had the actor not been in that condition, he or she would have been aware of creating an unreasonable and substantial risk of death or great bodily harm to another human being.
939.24 Note
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal recklessness, the culpable mental state of numerous offenses. Recklessness requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor's subjective awareness of that risk.
939.24 Annotation
Sub. (3) continues the present rule that a voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness. Ameen v. State,
51 Wis. 2d 175, 185 (1971). Patterned on s. 2.08 of the model penal code, it premises liability on whether the actor would have been aware if not in such condition of the risk of death or great bodily harm. The commentaries to s. 2.08, model penal code, state the rationale of this rule in extended fashion. [Bill 191-S]
939.25
939.25
Criminal negligence. 939.25(1)(1) In this section, "criminal negligence" means ordinary negligence to a high degree, consisting of conduct which the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.
939.25(2)
(2) If criminal negligence is an element of a crime in
chs. 939 to
951 or
s. 346.62, the negligence is indicated by the term "negligent".
939.25 History
History: 1987 a. 399;
1989 a. 56 s.
259.
939.25 Note
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal negligence, patterned on prior ss. 940.08 (2), 940.24 (2) and 941.01 (2). Criminal negligence means the creation of a substantial and unreasonable risk of death or great bodily harm to another, of which the actor should be aware. [Bill 191-S]
939.25 Annotation
The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 W (2d) 180, 515 NW (2d) 493 (Ct. App. 1994).
INCHOATE CRIMES.
939.30(1)(1) Except as provided in
sub. (2) and
ss. 948.35 and
961.455, whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class D felony.
939.30(2)
(2) For a solicitation to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class C felony. For a solicitation to commit a Class E felony, the actor is guilty of a Class E felony.
939.30 Annotation
Prosecuting under 939.30 rather than 944.30 did not deny equal protection. Sears v. State, 94 W (2d) 128, 287 NW (2d) 785 (1980).
939.30 Annotation
Section 939.05 (2) (c) does not make renunciation or withdrawal a defense to the crime of solicitation. State v. Boehm, 127 W (2d) 351, 379 NW (2d) 874 (Ct. App. 1985).
939.30 Annotation
Where "A" solicits "B" to solicit "A" to commit perjury, "A" is guilty of solicitation. State v. Manthey, 169 W (2d) 673, 487 NW (2d) 44 (Ct. App. 1992).
939.31
939.31
Conspiracy. Except as provided in
ss. 940.43 (4),
940.45 (4) and
961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.
939.32(1)(1) Whoever attempts to commit a felony or a battery as defined by
s. 940.19 or theft as defined by
s. 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except:
939.32(1)(a)
(a) Whoever attempts to commit a crime for which the penalty is life imprisonment is guilty of a Class B felony.
939.32(1)(c)
(c) Whoever attempts to commit a crime under
ss. 940.42 to
940.45 is subject to the penalty for the completed act, as provided in
s. 940.46.
939.32(1)(cm)
(cm) Whoever attempts to commit a crime under
s. 941.21 is subject to the penalty provided in that section for the completed act.
939.32(1)(d)
(d) Whoever attempts to commit a crime under
s. 948.07 is subject to the penalty provided in that section for the completed act.
939.32(1)(e)
(e) Whoever attempts to commit a crime under
s. 948.605 (3) (a) is subject to the penalty provided in that paragraph for the completed act.
939.32(2)
(2) Whoever attempts to commit a misdemeanor under
s. 943.70 is subject to:
939.32(2)(a)
(a) A Class D forfeiture if it is the person's first violation under
s. 943.70.
939.32(2)(b)
(b) A Class C forfeiture if it is the person's 2nd violation under
s. 943.70.
939.32(2)(c)
(c) A Class B forfeiture if it is the person's 3rd violation under
s. 943.70.
939.32(2)(d)
(d) A Class A forfeiture if it is the person's 4th or subsequent violation under
s. 943.70.
939.32(3)
(3) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
939.32 Annotation
There is no such crime as "attempted homicide by reckless conduct" since the completed offense does not require intent while any attempt must demonstrate intent. State v. Melvin, 49 W (2d) 246, 181 NW (2d) 490.
939.32 Annotation
Attempted first degree murder is shown where only the fact of the gun misfiring and the action of the intended victim prevented completion of the crime. Austin v. State, 52 W (2d) 716, 190 NW (2d) 887.
939.32 Annotation
The victim's kicking defendant in the mouth and other resistance was a valid extraneous factor so as to supply one of the essential requirements for the crime of attempted rape. Adams v. State, 57 W (2d) 515, 204 NW (2d) 657.
939.32 Annotation
Conviction of attempted rape was upheld where screams and struggles of intended victim were an effective intervening extrinsic force not under control of defendant. Leach v. State, 83 W (2d) 199, 265 NW (2d) 495 (1978).
939.32 Annotation
Failure to consummate crime is not essential element of criminal attempt under (2). Berry v. State, 90 W (2d) 316, 280 NW (2d) 204 (1979).
939.32 Annotation
Intervention of extraneous factor is not essential element of criminal attempt under (2). Hamiel v. State, 92 W (2d) 656, 285 NW (2d) 639 (1979).
939.32 Annotation
Crime of attempted manslaughter exists in Wisconsin. State v. Oliver, 108 W (2d) 25, 321 NW (2d) 119 (1982).
939.32 Annotation
To prove attempt, state must prove intent to commit specific crime accompanied by sufficient acts to demonstrate unequivocally that it was improbable accused would desist of own free will. State v. Stewart, 143 W (2d) 28, 420 NW (2d) 44 (1988).
939.32 Annotation
Subs. (1) and (2) enumerate all offenses which may be prosecuted as attempts. State v. Cvorovic, 158 W (2d) 630, 462 NW (2d) 897 (Ct. App. 1990).
939.32 Annotation
Meaning of "have intent to" in (3) discussed. State v. Weeks, 165 W (2d) 200, 477 NW (2d) 642 (Ct. App. 1991).
939.32 Annotation
Where a sentence for an attempted crime is subject to repeater enhancement, the maximum penalty for the underlying crime is halved under sub. (1) then the enhancer is added to that penalty. State v. Bush, 185 W (2d) 716, 519 NW (2d) 645 (Ct. App. 1994).
939.32 Annotation
The intervention of an extraneous factor that prevents the commission of a crime is irrelevant to an attempt to commit the crime unless the factor may negate the intent to commit the crime. That a defendant believed he was acquiring stolen property when the property was not actually stolen did not prevent the prosecution of the defendant for attempt to receive stolen property. State v. Kordas, 191 W (2d) 124, 528 NW (2d) 483 (Ct. App. 1995).
939.32 Annotation
See note to 940.225, citing Upshaw v. Powell, 478 F Supp. 1264 (1979).
DEFENSES TO CRIMINAL LIABILITY.
939.42
939.42
Intoxication. An intoxicated or a drugged condition of the actor is a defense only if such condition:
939.42(1)
(1) Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed; or
939.42(2)
(2) Negatives the existence of a state of mind essential to the crime, except as provided in
s. 939.24 (3).
939.42 History
History: 1987 a. 399.
939.42 Annotation
To be relieved from responsibility for criminal acts it is not enough for a defendant to establish that he was under the influence of intoxicating beverages; he must establish that degree of intoxication that means he was utterly incapable of forming the intent requisite to the commission of the crime charged. State v. Guiden, 46 W (2d) 328, 174 NW (2d) 488.
939.42 Annotation
Intoxication is not a defense to a charge of 2nd degree murder. Ameen v. State, 51 W (2d) 175, 186 NW (2d) 206.
939.42 Annotation
This section does not afford a defense where drugs were taken voluntarily and the facts demonstrate that there was an intent to kill and conceal the crime. Gibson v. State, 55 W (2d) 110, 197 NW (2d) 813.
939.42 Annotation
Evidence of addiction was properly excluded as basis for showing "involuntariness". Loveday v. State, 74 W (2d) 503, 247 NW (2d) 116.
