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.
939.42 Annotation
Voluntary intoxication instructions were proper where defendant, suffering from a non-temporary pre-psychotic condition, precipitated a temporary psychotic state by voluntary intoxication. State v. Kolisnitschenko, 84 W (2d) 492, 267 NW (2d) 321 (1978).
939.42 Annotation
Intoxication instruction did not impermissibly shift burden of proof to accused. State v. Reynosa, 108 W (2d) 499, 322 NW (2d) 504 (Ct. App. 1982).
939.42 Annotation
A correct statement of the law under this section should be conveyed to the jury by instructing it that it must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense. State v. Foster, 191 W (2d) 14, 528 NW (2d) 22 (Ct. App. 1995).
939.42 Annotation
Alcoholism as a defense. 53 MLR 445.
939.43(1)(1) An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime.
939.43(2)
(2) A mistake as to the age of a minor or as to 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 is not a defense.
939.43 Annotation
The prosecution of an individual who relies on legal opinion of a governmental official, statutorily required to so opine, would impose an unconscionable rigidity in the law. State v. Davis, 63 W (2d) 75, 216 NW (2d) 31.
939.44
939.44
Adequate provocation. 939.44(1)(a)
(a) "Adequate" means sufficient to cause complete lack of self-control in an ordinarily constituted person.
939.44(1)(b)
(b) "Provocation" means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.
939.44(2)
(2) Adequate provocation is an affirmative defense only to first-degree intentional homicide and mitigates that offense to 2nd-degree intentional homicide.
939.44 History
History: 1987 a. 399.
939.44 Note
Judicial Council Note, 1988: Sub. (1) codifies Wisconsin decisions defining "heat of passion" under prior s. 940.05. Ryan v. State, 115 Wis. 488 (1902); Johnson v. State, 129 Wis. 146 (1906); Carlone v. State, 150 Wis. 38 (1912); Zenou v. State,
4 Wis. 2d 655 (1958); State v. Bond,
41 Wis. 2d 219 (1969); State v. Williford,
103 Wis. 2d 98 (1981).
939.44 Annotation
Traditionally, provocation had 2 essential requirements. State v. Williford, supra., at 113. The first reflected in sub. (1) (b), is subjective. The defendant must have acted in response to provocation. This necessitates an assessment of the particular defendant's state of mind at the time of the killing. The 2nd requirement, reflected in sub. (1) (a), is objective. Only provocation sufficient to cause a reasonable person to lose self-control completely is legally adequate to mitigate the severity of the offense.
939.44 Annotation
Sub. (2) clarifies that adequate provocation is an affirmative defense to first-degree intentional homicide. Although adequate provocation does not negate the intent to kill such that the burden of persuasion rests on the state by constitutional principals (Mullaney v. Wilbur,
421 U.S. 684, (1975), Wisconsin has chosen to place the burden of disproving this defensive matter on the prosecution beyond a reasonable doubt. State v. Lee,
108 Wis. 2d 1 (1982). Since adequate provocation is not an affirmative defense to 2nd-degree intentional homicide, its effect is to mitigate the severity of an intentional homicide from first to 2nd degree. [Bill 191-S]
939.45
939.45
Privilege. The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:
939.45(1)
(1) When the actor's conduct occurs under circumstances of coercion or necessity so as to be privileged under
s. 939.46 or
939.47; or
939.45(2)
(2) When the actor's conduct is in defense of persons or property under any of the circumstances described in
s. 939.48 or
939.49; or
939.45(3)
(3) When the actor's conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office; or
939.45(4)
(4) When the actor's conduct is a reasonable accomplishment of a lawful arrest; or
939.45(5)(a)3.
3. "Person responsible for the child's welfare" includes the child's parent, stepparent or guardian; an employe of a public or private residential home, institution or agency in which the child resides or is confined or that provides services to the child; or any other person legally responsible for the child's welfare in a residential setting.
939.45(5)(b)
(b) When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.
939.45(6)
(6) When for any other reason the actor's conduct is privileged by the statutory or common law of this state.
939.45 Annotation
Accused had no apparent authority to drive while under influence of intoxicant. State v. Schoenheide, 104 W (2d) 114, 310 NW (2d) 650 (Ct. App. 1981).
939.45 Annotation
A foster parent is a "person legally responsible for the child's welfare" under sub. (5). State v. West, 183 W (2d) 46, 515 NW (2d) 484 (Ct. App. 1994).
939.45 Annotation
A mother's live-in boyfriend did not have parental immunity under sub. (5). The boyfriend did not have legal responsibility for the mother's children, and the term parent will not be interpreted to include persons in loco parentis. State v. Dodd, 185 W (2d) 560, 518 NW (2d) 300 (Ct. App. 1994)
939.46(1)(1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
939.46(2)
(2) It is no defense to a prosecution of a married person that the alleged crime was committed by command of the spouse nor is there any presumption of coercion when a crime is committed by a married person in the presence of the spouse.
939.46 History
History: 1975 c. 94;
1987 a. 399.
939.46 Note
Judicial Council Note, 1988: Sub. (1) is amended by conforming references to the statute titles created by this bill. Since coercion mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.46 Annotation
State must disprove beyond reasonable doubt asserted coercion defense. Moes v. State, 91 W (2d) 756, 284 NW (2d) 66 (1979).
939.47
939.47
Necessity. Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
939.47 History
History: 1987 a. 399.
939.47 Note
Judicial Council Note, 1988: This section is amended by conforming references to the statute titles created by this bill. Since necessity mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.47 Annotation
Defense of necessity is unavailable to demonstrator who seeks to stop shipment of nuclear fuel on grounds of safety. State v. Olsen, 99 W (2d) 572, 299 NW (2d) 632 (Ct. App. 1980).
939.47 Annotation
Heroin addiction is not a "natural physical force" as used in this section. An addict, caught injecting heroin in jail, who was not provided methadone in jail as had been promised to him, was not entitled to assert the necessity defense to a charge of possession of heroin because his addiction ultimately resulted from his conscious decision to start using illegal drugs. State v. Anthuber, 201 W (2d) 512, 549 NW (2d) 477 (Ct. App. 1996).
939.48
939.48
Self-defense and defense of others. 939.48(1)
(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
939.48(2)
(2) Provocation affects the privilege of self-defense as follows:
939.48(2)(a)
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
939.48(2)(b)
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
939.48(2)(c)
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
939.48(3)
(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
939.48(4)
(4) A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the third person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the third person.
939.48(5)
(5) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.
939.48(6)
(6) In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.
939.48 History
History: 1987 a. 399;
1993 a. 486.
939.48 Note
Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
939.48 Annotation
When a defendant testifies he did not intend to shoot or use force, he cannot claim self-defense. Cleghorn v. State, 55 W (2d) 466, 198 NW (2d) 577.
939.48 Annotation
Sub. (2) (b) is inapplicable to the defendant where the nature of the initial provocation is the gun-in-hand confrontation of an intended victim by a self-identified robber, for under these circumstances the intended victim is justified in the use of force in the exercise of his right of self-defense. Ruff v. State, 65 W (2d) 713, 223 NW (2d) 446.
939.48 Annotation
Whether defendant's belief was reasonable under (1) and (4) depends, in part, upon parties' personal characteristics and histories and whether events were continuous. State v. Jones, 147 W (2d) 806, 434 NW (2d) 380 (1989).
939.48 Annotation
Discussion of self-defense and evidence of victim's reputation for violence. State v. Daniels, 160 W (2d) 85, 465 NW (2d) 633 (1991).
939.48 Annotation
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 W (2d) 860, 501 NW (2d) 380 (1993).
939.48 Annotation
A person may employ deadly force against another, if such person reasonably believes such force necessary to protect a 3rd person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F (2d) 79.
939.48 Annotation
Self-defense—prior acts of the victim. 1974 WLR 266.
939.48 Annotation
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
939.49
939.49
Defense of property and protection against retail theft. 939.49(1)(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
939.49(2)
(2) A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employe or agent. An official or adult employe or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
939.49(3)
(3) In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.
939.49 Annotation
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer and it is only in certain aggravated circumstances that a police officer may shoot the person he is attempting to arrest. Clark v. Ziedonis, 368 F Supp. 544.
