940.42 Intimidation of witnesses; misdemeanor.
940.43 Intimidation of witnesses; felony.
940.44 Intimidation of victims; misdemeanor.
940.45 Intimidation of victims; felony.
940.46 Attempt prosecuted as completed act.
940.48 Violation of court orders.
Ch. 940 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.
LIFE.
940.01
940.01
First-degree intentional homicide. 940.01(1)
(1)
Offense. Except as provided in
sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
940.01(2)
(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under
s. 940.05:
940.01(2)(a)
(a)
Adequate provocation. Death was caused under the influence of adequate provocation as defined in
s. 939.44.
940.01(2)(b)
(b)
Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
940.01(2)(c)
(c)
Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
940.01(3)
(3) Burden of proof. When the existence of an affirmative defense under
sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under
sub. (1).
940.01 History
History: 1987 a. 399.
940.01 Note
Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of "intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.
940.01 Annotation
The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.
940.01 Annotation
Rule barring psychiatric or psychological opinion testimony on defendant's capacity to form intent to kill is constitutional. Haas v. Abrahamson, 910 F (2d) 384 (1990) citing Steele v. State, 97 W (2d) 72, 294 NW (2d) 2 (1980).
940.01 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 W (2d) 676, 489 NW (2d) 715 (Ct. App. 1992).
940.01 Annotation
The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense "has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N. 173 W (2d) 343, 497 NW (2d) 141 (Ct. App. 1992).
940.01 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).
940.01 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.01 Annotation
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
940.02
940.02
First-degree reckless homicide. 940.02(1)
(1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
940.02(2)
(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class B felony:
940.02(2)(a)
(a) By manufacture, distribution or delivery, in violation of
s. 961.41, of a controlled substance included in schedule I or II under
ch. 961 or of a controlled substance analog of a controlled substance included in schedule I or II under
ch. 961, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
940.02(2)(a)1.
1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
940.02(2)(a)2.
2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of
s. 961.41 occurs.
940.02(2)(a)3.
3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under
ch. 961 or of the controlled substance analog of the controlled substance included in schedule I or II under
ch. 961 is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of
s. 961.41 is guilty under this paragraph.
940.02(2)(b)
(b) By administering or assisting in administering a controlled substance included in schedule I or II under
ch. 961 or a controlled substance analog of a controlled substance included in schedule I or II of
ch. 961, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
940.02 History
History: 1987 a. 339,
399;
1995 a. 448.
940.02 Note
Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan,
44 Wis. 2d 68 (1969); State v. Weso,
60 Wis. 2d 404 (1973).
940.02 Annotation
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt,
21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
940.02 Annotation
Possession of controlled substance is not lesser included offense of sub. (2) (a). State v. Clemons, 164 W (2d) 506, 476 NW (2d) 283 (Ct. App. 1991).
940.02 Annotation
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent although it might be admissible in very limited circumstances. State v. Morgan, 195 W (2d) 388, 536 NW (2d) 425 (Ct. App. 1995).
940.02 Annotation
See note to 940.01, citing 1989 WLR 1323 (1989).
940.03
940.03
Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in
s. 940.225 (1) or
(2) (a),
943.02,
943.10 (2) or
943.32 (2) may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.
940.03 History
History: 1987 a. 399.
940.03 Note
Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W. 2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first degree sexual assault or 2nd degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson,
5 Wis. 2d 595,
93 N.W. 2d 355 (1958). [Bill 191-S]
940.03 Annotation
To prove the defendant caused the death, the state need only prove 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 W (2d) 423, 516 NW (2d) 399 (Ct. App. 1994), State v. Rivera, 184 W (2d) 485, 516 NW (2d) 391 (1994) and State v. Chambers, 183 W (2d) 316, 515 NW (2d) 531 (Ct. App. 1994).
940.04(1)(1) Any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $5,000 or imprisoned not more than 3 years or both.
940.04(2)
(2) Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years:
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(3)
(3) Any pregnant woman who intentionally destroys the life of her unborn child or who consents to such destruction by another may be fined not more than $200 or imprisoned not more than 6 months or both.
940.04(4)
(4) Any pregnant woman who intentionally destroys the life of her unborn quick child or who consents to such destruction by another may be imprisoned not more than 2 years.
940.04(5)
(5) This section does not apply to a therapeutic abortion which:
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 Annotation
Aborting child against father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 W (2d) 441, 275 NW (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 W (2d) 639, 526 NW (2d) 132 (1994).
940.04 Annotation
This section cited as similar to Texas statute which 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 US 113.
940.04 Annotation
State may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 US 9.
940.04 Annotation
Viability of unborn child discussed. Colautti v. Franklin, 439 US 379 (1979).
940.04 Annotation
Any law requiring parental consent for minor to obtain abortion must ensure that parent does not have absolute, and possibly arbitrary, veto. Bellotti v. Baird, 443 US 622 (1979).
940.04 Annotation
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to legitimate governmental objective of protecting potential life. Harris v. McRae, 448 US 297 (1980).
940.04 Annotation
Abortion issues discussed. Akron v. Akron Center for Reproductive Health, 462 US 416 (1983).
940.04 Annotation
Abortion issues discussed. Planned Parenthood Assn. v. Ashcraft, 462 US 476 (1983).
940.04 Annotation
Abortion issues discussed. Simopoulas v. Virginia, 462 US 506 (1983).
940.04 Annotation
Wisconsin's abortion statute (940.04, Stats. 1969) is unconstitutional as applied to the abortion of an embryo which has not quickened. Babbitz v. McCann, 310 F Supp. 293.
940.04 Annotation
Where U.S. supreme court decisions clearly made Wisconsin antiabortion statute unenforceable, issue in physician's action for injunctive relief against enforcement became mooted, and it no longer presented case or controversy over which court could have jurisdiction. Larkin v. McCann, 368 F Supp. 1352.
940.04 Annotation
State regulation of abortion. 1970 WLR 933.
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 this section, 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(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.
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 Annotation
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 Annotation
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
See note to 940.01 citing State v. Block, 170 W (2d) 676, 489 NW (2d) 715 (Ct. App. 1992).
940.05 Annotation
See note to 940.01, citing 1989 WLR 1323 (1989).
940.06
940.06
Second-degree reckless homicide. Whoever recklessly causes the death of another human being is guilty of a Class C felony.
940.06 History
History: 1987 a. 399.
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
See note to 940.01, citing 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 C felony.
