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.
940.07 History
History: 1977 c. 173.
940.08
940.08
Homicide by negligent handling of dangerous weapon, explosives or fire. 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 D felony.
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
High degree of negligence is determined by objective "reasonable person" test; subjective intent is not an element of the offense. Victim's contributory negligence is no defense. Hart v. State, 75 W (2d) 371, 249 NW (2d) 810.
940.09
940.09
Homicide by intoxicated use of vehicle or firearm. 940.09(1)(1) Any person who does any of the following is guilty of a Class C felony:
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)(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 0.1.
940.09(1b)
(1b) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under
sub. (1), any applicable maximum fine or imprisonment specified for the conviction is doubled.
940.09(1d)
(1d) If the person who committed an offense under
sub. (1) (a) or
(b) has 2 or more prior convictions, suspensions or revocations in a 10-year period, as counted under
s. 343.307 (1), the procedure under
s. 346.65 (6) may be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned by the person who committed the offense or the equipping of a motor vehicle owned by the person with an ignition interlock device.
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)(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 0.1 or more.
940.09(2)
(2) The defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have an alcohol concentration described under
sub. (1) (b) or
(bm) or
(1g) (b).
940.09 Annotation
See note to art. I, sec. 11, citing State v. Jenkins, 80 W (2d) 426, 259 NW (2d) 109.
940.09 Annotation
See note to art. I, sec. 11, citing State v. Bentley, 92 W (2d) 860, 286 NW (2d) 153 (Ct. App. 1979).
940.09 Annotation
See note to art. I, sec. 8, citing State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
940.09 Annotation
Because driving while intoxicated is inherently dangerous, state need not prove causal connection between driver's intoxication and victim's death. Sub. (2) does not violate right against self-incrimination. State v. Caibaiosai, 122 W (2d) 587, 363 NW (2d) 574 (1985).
940.09 Annotation
Where state impounded vehicle but released it to scrap dealer before defendant's expert could examine it, charge was properly dismissed for destruction of exculpatory evidence. State v. Hahn, 132 W (2d) 351, 392 NW (2d) 464 (Ct. App. 1986).
940.09 Annotation
A vehicle under this section is defined in s. 939.44 (2) and includes a tractor. State v. Sohn, 193 W (2d) 346, 535 NW (2d) 1 (Ct. App. 1995).
940.09 Annotation
Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 W (2d) 432, 538 NW (2d) 821 (Ct. App. 1995).
940.09 Annotation
This statute doesn't violate due process. Caibaiosai v. Barrington, 643 F Supp. 1007 (W. D. Wis. 1986).
940.09 Annotation
Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.
940.10
940.10
Homicide by negligent operation of vehicle. Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class E felony.
940.10 History
History: 1987 a. 399.
940.10 Note
Judicial Council Note, 1988 Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]
940.10 Annotation
Motorist was properly convicted under this section for running red light at 50 m.p.h., even though speed limit was 55 m.p.h. State v. Cooper, 117 W (2d) 30, 344 NW (2d) 194 (Ct. App. 1983).
940.10 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).
940.10 Annotation
A corporation may be subject to criminal liability under this section. State v. Knutson, Inc. 196 W (2d) 86, 537 NW (2d) 420 (Ct. App. 1995).
940.11
940.11
Mutilating or hiding a corpse. 940.11(1)
(1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class C felony.
940.11(2)
(2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class D felony.
940.11(3)
(3) A person may not be subject to prosecution under both this section and
s. 946.47 for his or her acts regarding the same corpse.
940.11 History
History: 1991 a. 205.
940.12
940.12
Assisting suicide. Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class D felony.
940.12 History
History: 1977 c. 173.
940.13
940.13
Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and
s. 939.05,
939.30 or
939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
940.13 History
History: 1985 a. 56.
940.15(1)(1) In this section, "viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.
940.15(2)
(2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class E felony.
940.15(3)
(3) Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.
940.15(4)
(4) Any abortion performed under
sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.
940.15(5)
(5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class E felony.
940.15(6)
(6) Any physician who intentionally performs an abortion under
sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class E felony.
940.15(7)
(7) Subsections (2) to
(6) and
s. 939.05,
939.30 or
939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.
940.15 History
History: 1985 a. 56.
BODILY SECURITY.
940.19
940.19
Battery; substantial battery; aggravated battery. 940.19(1)(1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.
940.19(2)
(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class E felony.
940.19(3)
(3) Whoever causes substantial bodily harm to another by an act done with intent to cause substantial bodily harm to that person or another is guilty of a Class D felony.
940.19(4)
(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class D felony.
940.19(5)
(5) Whoever causes great bodily harm to another by an act done with intent to cause either substantial bodily harm or great bodily harm to that person or another is guilty of a Class C felony.
940.19(6)
(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class D felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:
940.19(6)(a)
(a) If the person harmed is 62 years of age or older; or
940.19(6)(b)
(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.
940.19 Annotation
Under "elements only" test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections where proof of nonconsent is not required. State v. Richards, 123 W (2d) 1, 365 NW (2d) 7 (1985).
