939.23 Annotation
Court properly refused to instruct jury on "mistake of fact" defense where accused claimed that victim moved into path of gunshot intended only to frighten victim. State v. Bougneit, 97 W (2d) 687, 294 NW (2d) 675 (Ct. App. 1980).
939.23 Annotation
See note to 951.02, citing State v. Stanfield, 105 W (2d) 553, 314 NW (2d) 339.
939.23 Annotation
Constitutionality of sub. (3) upheld. State v. Smith, 170 W (2d) 701, 490 NW (2d) 40 (Ct. App. 1992).
939.24
939.24
Criminal recklessness. 939.24(1)
(1) In this section, "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk, except that for purposes of
ss. 940.02 (1m),
940.06 (2) and
940.23 (1) (b) and
(2) (b), "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another and the actor is aware of that risk.
939.24(2)
(2) Except as provided in
ss. 940.285,
940.29 and
940.295, if criminal recklessness is an element of a crime in
chs. 939 to
951, the recklessness is indicated by the term "reckless" or "recklessly".
939.24(3)
(3) A voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness if, had the actor not been in that condition, he or she would have been aware of creating an unreasonable and substantial risk of death or great bodily harm to another human being.
939.24 Note
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal recklessness, the culpable mental state of numerous offenses. Recklessness requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor's subjective awareness of that risk.
939.24 Annotation
Sub. (3) continues the present rule that a voluntarily produced intoxicated or drugged condition is not a defense to liability for criminal recklessness. Ameen v. State,
51 Wis. 2d 175, 185 (1971). Patterned on s. 2.08 of the model penal code, it premises liability on whether the actor would have been aware if not in such condition of the risk of death or great bodily harm. The commentaries to s. 2.08, model penal code, state the rationale of this rule in extended fashion. [Bill 191-S]
939.25
939.25
Criminal negligence. 939.25(1)(1) In this section, "criminal negligence" means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another, except that for purposes of
ss. 940.08 (2),
940.10 (2) and
940.24 (2), "criminal negligence" means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another.
939.25(2)
(2) If criminal negligence is an element of a crime in
chs. 939 to
951 or
s. 346.62, the negligence is indicated by the term "negligent" or "negligently".
939.25 Note
Judicial Council Note, 1988: This section is new. It provides a uniform definition of criminal negligence, patterned on prior ss. 940.08 (2), 940.24 (2) and 941.01 (2). Criminal negligence means the creation of a substantial and unreasonable risk of death or great bodily harm to another, of which the actor should be aware. [Bill 191-S]
939.25 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).
INCHOATE CRIMES.
939.30(1)(1) Except as provided in
sub. (2) and
ss. 948.35 and
961.455, whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class D felony.
939.30(2)
(2) For a solicitation to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class C felony. For a solicitation to commit a Class E felony, the actor is guilty of a Class E felony.
939.30 Annotation
Prosecuting under 939.30 rather than 944.30 did not deny equal protection. Sears v. State, 94 W (2d) 128, 287 NW (2d) 785 (1980).
939.30 Annotation
Section 939.05 (2) (c) does not make renunciation or withdrawal a defense to the crime of solicitation. State v. Boehm, 127 W (2d) 351, 379 NW (2d) 874 (Ct. App. 1985).
939.30 Annotation
Where "A" solicits "B" to solicit "A" to commit perjury, "A" is guilty of solicitation. State v. Manthey, 169 W (2d) 673, 487 NW (2d) 44 (Ct. App. 1992).
939.31
939.31
Conspiracy. Except as provided in
ss. 940.43 (4),
940.45 (4) and
961.41 (1x), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.
939.31 Annotation
A conspiracy may be unilateral; a person can enter into a conspiracy to accomplish a criminal objective where only the defendant has a criminal intent. State v. Sample, 215 W (2d) 486, 573 NW (2d) 187 (1998).
939.32(1)(1) Whoever attempts to commit a felony or a crime specified in
s. 940.19,
940.195 or
943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except:
939.32(1)(a)
(a) Whoever attempts to commit a crime for which the penalty is life imprisonment is guilty of a Class B felony.
939.32(1)(c)
(c) Whoever attempts to commit a crime under
ss. 940.42 to
940.45 is subject to the penalty for the completed act, as provided in
s. 940.46.
939.32(1)(cm)
(cm) Whoever attempts to commit a crime under
s. 941.21 is subject to the penalty provided in that section for the completed act.
939.32(1)(d)
(d) Whoever attempts to commit a crime under
s. 948.07 is subject to the penalty provided in that section for the completed act.
939.32(1)(e)
(e) Whoever attempts to commit a crime under
s. 948.605 (3) (a) is subject to the penalty provided in that paragraph for the completed act.
939.32(2)
(2) Whoever attempts to commit a misdemeanor under
s. 943.70 is subject to:
939.32(2)(a)
(a) A Class D forfeiture if it is the person's first violation under
s. 943.70.
939.32(2)(b)
(b) A Class C forfeiture if it is the person's 2nd violation under
s. 943.70.
939.32(2)(c)
(c) A Class B forfeiture if it is the person's 3rd violation under
s. 943.70.
939.32(2)(d)
(d) A Class A forfeiture if it is the person's 4th or subsequent violation under
s. 943.70.
939.32(3)
(3) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
939.32 Annotation
There is no such crime as "attempted homicide by reckless conduct" since the completed offense does not require intent while any attempt must demonstrate intent. State v. Melvin, 49 W (2d) 246, 181 NW (2d) 490.
939.32 Annotation
Attempted first degree murder is shown where only the fact of the gun misfiring and the action of the intended victim prevented completion of the crime. Austin v. State, 52 W (2d) 716, 190 NW (2d) 887.
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
Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 W (2d) 61, 579 NW (2d) 783 (Ct. App. 1998).
939.32 Annotation
The conduct element of sub. (3) is satisfied when the accused engages in conduct which demonstrates that only a circumstance beyond the accused's control could prevent the crime; that it has become too late to repent and withdraw. State v. Henthorn, 218 W (2d) 526, 581 NW (2d) 544 (Ct. App. 1998).
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.
939.43 Annotation
Mistake is not a defense to criminal negligence. A defendant's subjective state of mind is not relevant to determining criminal negligence. State v. Lindvig, 205 (2d) 100, 555 NW (2d) 197 (Ct. App. 1996).
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
