940.03 Annotation To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase “while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994), State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994) and State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).
940.03 Annotation Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.
940.03 Annotation Oimen affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.
940.03 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.03 Annotation For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.
940.03 Annotation An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.03 Annotation Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was “wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.04 940.04 Abortion.
940.04(1)(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
940.04(2) (2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
940.04(2)(a) (a) Intentionally destroys the life of an unborn quick child; or
940.04(2)(b) (b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
940.04(5) (5) This section does not apply to a therapeutic abortion which:
940.04(5)(a) (a) Is performed by a physician; and
940.04(5)(b) (b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
940.04(5)(c) (c) Unless an emergency prevents, is performed in a licensed maternity hospital.
940.04(6) (6) In this section “unborn child" means a human being from the time of conception until it is born alive.
940.04 History History: 2001 a. 109; 2011 a. 217.
940.04 Annotation Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).
940.04 Annotation Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe v. Wade. State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).
940.04 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.04 Annotation This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113 (1973).
940.04 Annotation The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9 (1975).
940.04 AnnotationThe viability of an unborn child is discussed. Colautti v. Franklin, 439 U.S. 379 (1979).
940.04 Annotation Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297 (1980).
940.04 Annotation Abortion issues are discussed. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Simopoulas v. Virginia, 462 U.S. 506 (1983).
940.04 Annotation The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).
940.04 Annotation Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970).
940.04 Annotation When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).
940.05 940.05 Second-degree intentional homicide.
940.05(1)(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
940.05(1)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(1)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2) (2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
940.05(2g) (2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
940.05(2g)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(2g)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2h) (2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.
940.05(3) (3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.
940.05 History History: 1987 a. 399; 1997 a. 295.
940.05 Note Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
940.05 Note Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
940.05 Note When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]
940.05 Annotation The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
940.05 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.05 Annotation Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.06 940.06 Second-degree reckless homicide.
940.06(1) (1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.
940.06(2) (2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.
940.06 History History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
940.06 Note Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]
940.06 Annotation Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
940.06 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.06 Annotation The second-degree reckless homicide statute 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. The circuit court's refusal to instruct the jury about the effect of a parent's sincere belief in prayer treatment for their child on the subjective awareness element of second-degree reckless homicide, did not undermine the parents' ability to defend themselves. The second-degree reckless homicide statute does not require that the actor be subjectively aware that his or her conduct is a cause of the death of his or her child. The statute and the jury instructions require only that the actor be subjectively aware that his or her conduct created the unreasonable and substantial risk of death or great bodily harm. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044.
940.06 Annotation Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.07 940.07 Homicide resulting from negligent control of vicious animal. Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class G felony.
940.07 History History: 1977 c. 173; 2001 a. 109.
940.07 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.08 940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
940.08(1) (1) Except as provided in sub. (3), whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
940.08(2) (2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
940.08(3) (3)Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
940.08 Note Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]
940.08 Annotation The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.09 940.09 Homicide by intoxicated use of vehicle or firearm.
940.09(1)(1) Any person who does any of the following may be penalized as provided in sub. (1c):
940.09(1)(a) (a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(am) (am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1)(b) (b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.09(1)(bm) (bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
940.09(1)(c) (c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(cm) (cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1)(d) (d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.09(1)(e) (e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
940.09(1c) (1c)
940.09(1c)(a)(a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony.
940.09(1c)(b) (b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2).
940.09(1d) (1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.
940.09(1g) (1g) Any person who does any of the following is guilty of a Class D felony:
940.09(1g)(a) (a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(am) (am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1g)(b) (b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
940.09(1g)(c) (c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(cm) (cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1g)(d) (d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
940.09(1m) (1m)
940.09(1m)(a)(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); any combination of sub. (1) (c), (cm), or (e); any combination of sub. (1g) (a), (am), or (b); or any combination of sub. (1g) (c), (cm), or (d) for acts arising out of the same incident or occurrence.
940.09(1m)(b) (b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 23.335 (23) (c) 2. and 3., under s. 30.80 (6) (a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 64 and all Supreme Court and Controlled Substances Board Orders effective on or before November 20, 2017. Published and certified under s. 35.18. Changes effective after November 20, 2017 are designated by NOTES. (Published 11-20-17)