RIGHTS OF THE ACCUSED.
939.70 Presumption of innocence and burden of proof.
939.71 Limitation on the number of convictions.
939.72 No conviction of both inchoate and completed crime.
939.73 Criminal penalty permitted only on conviction.
939.74 Time limitations on prosecutions.
939.75 Death or harm to an unborn child.
Ch. 939 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.
PRELIMINARY PROVISIONS.
939.01
939.01
Name and interpretation. Chapters 939 to
951 may be referred to as the criminal code but shall not be interpreted as a unit. Crimes committed prior to July 1, 1956, are not affected by
chs. 939 to
951.
939.01 History
History: 1979 c. 89;
1987 a. 332 s.
64.
939.03
939.03
Jurisdiction of state over crime. 939.03(1)
(1) A person is subject to prosecution and punishment under the law of this state if:
939.03(1)(a)
(a) The person commits a crime, any of the constituent elements of which takes place in this state; or
939.03(1)(b)
(b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state; or
939.03(1)(c)
(c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime; or
939.03(1)(d)
(d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.
939.03 History
History: 1983 a. 192;
1993 a. 486.
939.03 Annotation
Jurisdiction over crime committed by Menominee while on the Menominee Indian Reservation discussed. State ex rel. Pyatskowit v. Montour, 72 W (2d) 277, 240 NW (2d) 186.
939.03 Annotation
Treaties between federal government and Menominee tribe do not deprive state of criminal subject matter jurisdiction over crime committed by a Menominee outside the reservation. Sturdevant v. State, 76 W (2d) 247, 251 NW (2d) 50.
939.03 Annotation
See note to Art. I, sec. 8, citing State ex rel. Skinkis v. Treffert, 90 W (2d) 528, 280 NW (2d) 316 (Ct. App. 1979).
939.03 Annotation
Fisherman who violated Minnesota and Wisconsin fishing laws while standing on Minnesota bank of Mississippi was subject to Wisconsin prosecution. State v. Nelson, 92 W (2d) 855, 285 NW (2d) 924 (Ct. App. 1979)
939.03 Annotation
See note to 346.65, citing County of Walworth v. Rohner, 108 W (2d) 713, 324 NW (2d) 682 (1982).
939.03 Annotation
Unlawful arrest does not deprive court of personal jurisdiction over defendant. State v. Smith, 131 W (2d) 220, 388 NW (2d) 601 (1986).
939.03 Annotation
Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 W (2d) 206, 548 NW (2d) 134 (Ct. App. 1996).
939.03 Annotation
Objections to subject matter jurisdiction which turn on a question of law may not be waived by a guilty plea, but objections to subject matter jurisdiction based on a factual dispute do not survive. State v. Bratrud, 204 W (2d) 445, 555 NW (2d) 662 (Ct. App. 1995).
939.03 Annotation
A trial court did not lose subject matter jurisdiction over a count in a criminal complaint when an oral amendment of the count did not include one of the elements of the new offense. State v. Diehl, 205 W (2d) 1, 555 NW (2d) 174 (Ct. App. 1996).
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 where 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 the section in the absence of a showing of adverse effect on the defendant. Bethards v. State, 45 W (2d) 606, 173 NW (2d) 634.
939.05 Annotation
It is not error that an information charging a crime does not also charge defendant with being a party to a crime. Nicholas v. State, 49 W (2d) 683, 183 NW (2d) 11.
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 W (2d) 791, 191 NW (2d) 12.
939.05 Annotation
An information charging 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 he claims that he only intended to rob and an accomplice did the shooting. State v. Cydzik, 60 W (2d) 683, 211 NW (2d) 421.
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 W (2d) 262, 212 NW (2d) 103.
939.05 Annotation
Evidence establishing that defendant's car was used in robbery getaway was sufficient to convict defendant of armed robbery, party to a crime, where defendant admitted sole possession of car on night of robbery. Taylor v. State, 74 W (2d) 255, 246 NW (2d) 518.
939.05 Annotation
Conduct undertaken to intentionally aid another in commission of a crime and which yields such assistance constitutes aiding and abetting the crime and whatever it entails as a natural consequence. State v. Asfoor, 75 W (2d) 411, 249 NW (2d) 529.
939.05 Annotation
Defendants may be found guilty under (2) if, between them, they perform all necessary elements of crime with awareness of what the others are doing; each defendant need not be present at scene of crime. Roehl v. State, 77 W (2d) 398, 253 NW (2d) 210.
939.05 Annotation
Aiding-and-abetting theory and conspiracy theory discussed. State v. Charbarneau, 82 W (2d) 644, 264 NW (2d) 227.
939.05 Annotation
Withdrawal under (2) (c) must be timely. Zelenka v. State, 83 W (2d) 601, 266 NW (2d) 279 (1978).
939.05 Annotation
This section applies to all crimes except where legislative intent clearly indicates otherwise. State v. Tronca, 84 W (2d) 68, 267 NW (2d) 216 (1978).
939.05 Annotation
Proof of a "stake in the venture" is not needed to convict under (2) (b). Krueger v. State, 84 W (2d) 272, 267 NW (2d) 602 (1978).
939.05 Annotation
Multiple conspiracies discussed. Bergeron v. State, 85 W (2d) 595, 271 NW (2d) 386 (1978).
939.05 Annotation
Jury need not unanimously agree whether defendant (1) directly committed crime, (2) aided and abetted its commission, or (3) conspired with another to commit it. Holland v. State, 91 W (2d) 134, 280 NW (2d) 288 (1979).
939.05 Annotation
Aider and abettor who withdraws from conspiracy does not remove self from aiding and abetting. May v. State, 97 W (2d) 175, 293 NW (2d) 478 (1980).
939.05 Annotation
Party to crime is guilty of that crime whether or not party intended that crime or had intent of its perpetrator. State v. Stanton, 106 W (2d) 172, 316 NW (2d) 134 (Ct. App. 1982.)
939.05 Annotation
See note to 161.41, citing State v. Hecht, 116 W (2d) 605, 342 NW (2d) 721 (1984).
939.05 Annotation
See note to 971.23, citing State v. Horenberger, 119 W (2d) 237, 349 NW (2d) 692 (1984).
939.05 Annotation
Depending on facts of case, armed robbery can be natural and probable consequence of robbery. In such case, aider and abettor need not have had actual knowledge that principals would be armed. State v. Ivey, 119 W (2d) 591, 350 NW (2d) 622 (1984).
939.05 Annotation
Sub. (1) (c) may be violated where defendant solicits second person to procure third person to commit crime. State v. Yee, 160 W (2d) 15, 465 NW (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 W (2d) 428, 504 NW (2d) 405 (Ct. App. 1993).
939.05 Annotation
A defendant may be guilty of felony murder, party to a crime, where 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 W (2d) 485, 516 NW (2d) 391 (1994), State v. Chambers, 183 W (2d) 316, 515 NW (2d) 531 (Ct. App. 1994), State v. Oimen, 184 W (2d) 423, 516 NW (2d) 399 (Ct. App. 1994).
939.05 Annotation
Unanimity requirement was satisfied when jury unanimously found that accused participated in crime. Lampkins v. Gagnon, 710 F (2d) 374 (1983).
939.05 Annotation
This section does not shift burden of proof. Prosecution need not specify which paragraph of (2) under which it intends to proceed. 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.
939.10 Annotation
The common law privilege to forcibly resist an unlawful arrest is abrogated. State v. Hobson, 218 W (2d) 350, 577 NW (2d) 825 (1998).
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
Jury instruction that defrauded party had no duty to investigate fraudulent representations was correct. Lambert v. State, 73 W (2d) 590, 243 NW (2d) 524.
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 W (2d) 182, 556 NW (2d) 90 (1996).
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(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 electric weapon, as defined in
s. 941.295 (4); 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(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(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:
