939.03 Annotation
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),
97-3091.
939.03 Annotation
If there is no serious evidentiary dispute that the trial court has territorial jurisdiction, a special instruction on territorial jurisdiction need not be given to the jury. A person may be prosecuted for doing an act outside this state that has a criminally proscribed consequence within the state. State v. Brown,
2003 WI App 34,
260 Wis. 2d 125,
659 N.W.2d 110,
02-1000.
939.03 Annotation
The constituent elements of an offense under sub. (1) (a) are those elements of the criminal offense that the state is required to prove beyond a reasonable doubt in the prosecution of the offense. A constituent element of a criminal offense may be either the wrongful deed that comprises the physical component or the state of mind that the prosecution must prove that a defendant had. For 1st-degree homicide, sub. (1) (a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. State v. Anderson,
2005 WI 54,
280 Wis. 2d 104,
695 N.W.2d 731,
03-3478.
939.05
939.05
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.
939.05(2)
(2) A person is concerned in the commission of the crime if the person:
939.05(2)(b)
(b) Intentionally aids and abets the commission of it; or
939.05(2)(c)
(c) 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.
939.05 History
History: 1993 a. 486.
939.05 Annotation
It is desirable, but not mandatory, that an information refer to this section if 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 this 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 (1970).
939.05 Annotation
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 (1973).
939.05 Annotation
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.
939.05 Annotation
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 (1971).
939.05 Annotation
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 the defendant claimed only intending to rob and that an accomplice did the shooting. State v. Cydzik,
60 Wis. 2d 683,
211 N.W.2d 421 (1973).
939.05 Annotation
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 (1973).
939.05 Annotation
Conduct undertaken to intentionally aid another in the commission of a crime that 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 (1977).
939.05 Annotation
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 (1977).
939.05 Annotation
There are 2 party-to-a-crime theories. Aiding and abetting under sub. (2) (b) and conspiracy under sub. (2) (c). State v. Charbarneau,
82 Wis. 2d 644,
264 N.W.2d 227 (1978).
939.05 Annotation
This section applies to all crimes unless legislative intent clearly indicates otherwise. State v. Tronca,
84 Wis. 2d 68,
267 N.W.2d 216 (1978).
939.05 Annotation
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 (1978).
939.05 Annotation
Multiple conspiracies and single conspiracies are distinguished. Bergeron v. State,
85 Wis. 2d 595,
271 N.W.2d 386 (1978).
939.05 Annotation
A jury need not unanimously agree whether the 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 (1979).
939.05 Annotation
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 (1980).
939.05 Annotation
A party to a crime is guilty of that crime whether or not that party intended the crime or had the intent of its perpetrator. State v. Stanton,
106 Wis. 2d 172,
316 N.W.2d 134 (Ct. App. 1982.)
939.05 Annotation
The elements of aiding and abetting 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 (1984).
939.05 Annotation
The jury need not unanimously agree as to in which of the alternative ways under sub. (2) a defendant has committed the offense under the party to the crime theory. While there may be distinctions between aiding abetting and conspiracy, the distinctions are often blurred. State v. Hecht,
116 Wis. 2d 605,
342 N.W.2d 721 (1984).
939.05 Annotation
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 (1984).
939.05 Annotation
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 (1984).
939.05 Annotation
Sub. (2) (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).
939.05 Annotation
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).
939.05 Annotation
A defendant may be guilty of felony murder, party to a crime, if 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).
939.05 Annotation
There is a distinction between conspiracy as a substantive inchoate crime under s. 939.31 and conspiracy as a theory of prosecution for a substantive crime under s. 939.05 (2) (c). State v. Jackson,
2005 WI App 104,
281 Wis. 2d 137,
701 N.W.2d 42,
04-1603.
939.05 Annotation
The unanimity requirement was satisfied when the jury unanimously found that the accused participated in the crime. Lampkins v. Gagnon,
710 F. 2d 374 (1983).
939.05 Annotation
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 (1979).
939.05 Annotation
Liability for coconspirator's crimes in the Wisconsin party to a crime statute. 66 MLR 344 (1983).
939.05 Annotation
Application of Gipson's unanimous verdict rationale to the Wisconsin party to a crime statute. 1980 WLR 597.
939.05 Annotation
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.
939.10
939.10
Common law crimes abolished; common law rules preserved. Common law crimes are abolished. The common law rules of criminal law not in conflict with
chs. 939 to
951 are preserved.
939.10 History
History: 1979 c. 89;
1987 a. 332 s.
64;
2007 a. 97.
939.12
939.12
Crime defined. A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.
939.14
939.14
Criminal conduct or contributory negligence of victim no defense. It is no defense to a prosecution for a crime that the victim also was guilty of a crime or was contributorily negligent.
939.14 Annotation
A jury instruction that a defrauded party had no duty to investigate fraudulent representations was correct. Lambert v. State,
73 Wis. 2d 590,
243 N.W.2d 524 (1976).
939.14 Annotation
This section does not prevent considering the victim's negligence in relation to causation. This section only means that a defendant is not immune from prosecution merely because the victim has been negligent. State v. Lohmeier,
205 Wis. 2d 183,
556 N.W.2d 90 (1996),
94-2187.
939.20
939.20
Provisions which apply only to chapters 939 to 951. Sections 939.22 to
939.25 apply only to crimes defined in
chs. 939 to
951. Other sections in
ch. 939 apply to crimes defined in other chapters of the statutes as well as to those defined in
chs. 939 to
951.
939.22
939.22
Words and phrases defined. In
chs. 939 to
948 and
951, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction or the word or phrase is defined in
s. 948.01 for purposes of
ch. 948:
939.22(2)
(2) “Airgun" means a weapon which expels a missile by the expansion of compressed air or other gas.
939.22(4)
(4) “Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.
939.22(5)
(5) “Commission warden" means a conservation warden employed by the Great Lakes Indian Fish and Wildlife Commission.
939.22(9)
(9) “Criminal gang" means an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult, specified in
s. 939.22 (21) (a) to
(s); that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
939.22(9g)
(9g) “Criminal gang member" means any person who participates in criminal gang activity, as defined in
s. 941.38 (1) (b), with a criminal gang.
939.22(10)
(10) “Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in
s. 941.295 (1c) (a); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
939.22(14)
(14) “Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.
939.22(15)
(15) “Hazardous inhalant" means a substance that is ingested, inhaled, or otherwise introduced into the human body in a manner that does not comply with any cautionary labeling that is required for the substance under
s. 100.37 or under federal law, or in a manner that is not intended by the manufacturer of the substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
939.22(16)
(16) “Human being" when used in the homicide sections means one who has been born alive.
939.22(19)
(19) “Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
939.22(20d)
(20d) “Offense against an elderly or vulnerable person" means a violation of
s. 940.285 (2) (a) that caused death, great bodily harm, or bodily harm to the victim or
s. 940.295 (3) (b) that caused death, great bodily harm, or bodily harm to the victim.
939.22(21)
(21) “Pattern of criminal gang activity" means the commission of, attempt to commit or solicitation to commit 2 or more of the following crimes, or acts that would be crimes if the actor were an adult, at least one of those acts or crimes occurs after December 25, 1993, the last of those acts or crimes occurred within 3 years after a prior act or crime, and the acts or crimes are committed, attempted or solicited on separate occasions or by 2 or more persons:
939.22(21)(a)
(a) Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in
s. 961.41 (1).
