939.66 Annotation
While attempted aggravated battery is not an included crime of aggravated battery under (1), it is under (4). The reduced charge does not put defendant in double jeopardy. Dunn v. State, 55 W (2d) 192, 197 NW (2d) 749.
939.66 Annotation
Under sub. (1) the emphasis is on the proof, not the pleading, and the "stricken word test" stated in Eastway v. State, 189 W 56, is not incorporated in the statute. Martin v. State, 57 W (2d) 499, 204 NW (2d) 499.
939.66 Annotation
Section 947.015 is not an included crime in 941.30. State v. Van Ark, 62 W (2d) 155, 215 NW (2d) 41.
939.66 Annotation
Where the evidence overwhelmingly reveals that the shooting was intentional, failure to include 940.06 and 940.08 as lesser included offenses not error. Hayzes v. State, 64 W (2d) 189, 218 NW (2d) 717.
939.66 Annotation
In order to justify the submission of an instruction on a lesser degree of homicide than that with which defendant is charged there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. A defendant charged with 1st-degree murder is not entitled to an instruction as to 3rd-degree murder unless the evidence reasonably viewed could lead to acquittal on both 1st- and 2nd-degree murder. Harris v. State, 68 W (2d) 436, 228 NW (2d) 645.
939.66 Annotation
For one crime to be included in another, it must be utterly impossible to commit greater crime without committing lesser. Randolph v. State, 83 W (2d) 630, 266 NW (2d) 334 (1978).
939.66 Annotation
Test under (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of case. State v. Verhasselt, 83 W (2d) 647, 266 NW (2d) 342 (1978).
939.66 Annotation
Trial court erred in denying defendant's request for submission of verdict of endangering safety by conduct regardless of life as lesser included offense of attempted murder. Hawthorne v. State, 99 W (2d) 673, 299 NW (2d) 866 (1981).
939.66 Annotation
See note to Art. I, sec. 8, citing State v. Gordon, 111 W (2d) 133, 330 NW (2d) 564 (1983).
939.66 Annotation
Where defendant charged with 2nd degree murder denied firing fatal shot, manslaughter instruction was properly denied. State v. Sarabia, 118 W (2d) 655, 348 NW (2d) 527 (1984).
939.66 Annotation
See note to 940.19, citing State v. Richards, 123 W (2d) 1, 365 NW (2d) 7 (1985).
939.66 Annotation
See note to Art. I, sec. 8, citing State v. Stevens, 123 W (2d) 303, 367 NW (2d) 788 (1985).
939.66 Annotation
Crime of reckless use of weapons under s. 941.20 (1) (a), 1983 stats., is not lesser included offense of crime of endangering safety by conduct regardless of life while armed under ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington, 134 W (2d) 260, 397 NW (2d) 484 (1986).
939.66 Annotation
Court must instruct jury on properly requested lesser offense even though statute of limitations bars court from entering conviction on lesser offense. State v. Muentner, 138 W (2d) 374, 406 NW (2d) 415 (1987).
939.66 Annotation
See note to 808.09, citing State v. Myers, 158 W (2d) 356, 461 NW (2d) 777 (1990).
939.66 Annotation
Convictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz, 160 W (2d) 722, 467 NW (2d) 531 (1991).
939.66 Annotation
Evidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state's prosecuting position. State v. Fleming, 181 W (2d) 546, 510 NW (2d) 837 (Ct. App. 1993).
939.66 Annotation
This section does not bar multiple convictions when the homicides are "equally serious". Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment which the other did not. State v. Lechner, 217 W (2d) 392, 576 NW (2d) 912 (1998).
939.66 Annotation
Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 W (2d) 330, 579 NW (2d) 35 (1998).
939.66 Annotation
Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
939.66 Annotation
See also notes to Art. I, sec. 8, Double Jeopardy.
RIGHTS OF THE ACCUSED.
939.70
939.70
Presumption of innocence and burden of proof. No provision of
chs. 939 to
951 shall be construed as changing the existing law with respect to presumption of innocence or burden of proof.
939.70 History
History: 1979 c. 89;
1987 a. 332 s.
64.
939.71
939.71
Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.
939.71 Annotation
Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 W (2d) 330, 579 NW (2d) 35 (1998).
939.72
939.72
No conviction of both inchoate and completed crime. A person shall not be convicted under both:
939.72(2)
(2) Section 939.31 for conspiracy and
s. 939.05 as a party to a crime which is the objective of the conspiracy; or
939.72(3)
(3) Section 939.32 for attempt and the section defining the completed crime.
939.72 History
History: 1991 a. 153.
939.72 Annotation
Sub. (3) does not bar convictions for murder and attempted murder where defendant shot at one but killed another. Austin v. State, 86 W (2d) 213, 271 NW (2d) 668 (1978).
939.72 Annotation
Sub. (3) does not bar convictions for possession of burglarious tools and burglary arising out of single transaction. Dumas v. State, 90 W (2d) 518, 280 NW (2d) 310 (Ct. App. 1979).
939.73
939.73
Criminal penalty permitted only on conviction. A penalty for the commission of a crime may be imposed only after the actor has been duly convicted in a court of competent jurisdiction.
939.74
939.74
Time limitations on prosecutions. 939.74(1)
(1) Except as provided in
sub. (2), and
s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.
939.74(2)
(2) Notwithstanding that the time limitation under
sub. (1) has expired:
939.74(2)(b)
(b) A prosecution for theft against one who obtained possession of the property lawfully and subsequently misappropriated it may be commenced within one year after discovery of the loss by the aggrieved party, but in no case shall this provision extend the time limitation in
sub. (1) by more than 5 years.
939.74(3)
(3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state or during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.
939.74(4)
(4) In computing the time limited by this section, the time during which an alleged victim under
s. 940.22 (2) is unable to seek the issuance of a complaint under
s. 968.02 due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist shall not be included.
939.74 Annotation
Plea of guilty admits facts charged but not the crime and therefore does not raise issue of statute of limitations. State v. Pohlhammer, 78 W (2d) 516, 254 NW (2d) 478.
939.74 Annotation
See note to 971.08, citing State v. Pohlhammer, 82 W (2d) 1, 260 NW (2d) 678.
939.74 Annotation
Sub. (3) tolls running of statute of limitation during period in which defendant was not state resident and violates neither privileges and immunities clause nor equal protection clause of U.S. constitution. State v. Sher, 149 W (2d) 1, 437 NW (2d) 878 (1989).
939.74 Annotation
Person is not "publicly a resident within this state" under sub. (3) when living outside state but retaining state residence for voting and tax purposes. State v. Whitman, 160 W (2d) 260, 466 NW (2d) 193 (Ct. App. 1990).
939.74 Annotation
An arrest warrant is issued for purposes of sub. (1) when it is signed by a judge with intent that it be executed and leaves the possession of the judge. That the warrant is never executed is irrelevant. State v. Mueller, 201 W (2d) 121, 549 NW (2d) 455 (Ct. App. 1996).
939.74 Annotation
Plaintiff's allegations of defendant district attorney's bad faith presented no impediment to application of general principle prohibiting federal court interference with pending state prosecutions where the only factual assertion in support of claim was the district attorney's delay in completing prosecution, and there were no facts alleged which could support any conclusion other than that the district attorney had acted consistently with state statutes and constitution. Smith v. McCann, 381 F Supp. 1027.
939.75
939.75
Death or harm to an unborn child. 939.75(1)
(1) In this section and
ss. 939.24 (1),
939.25 (1),
940.01 (1) (b),
940.02 (1m),
940.05 (2g) and
(2h),
940.06 (2),
940.08 (2),
940.09 (1) (c) to
(e),
(1b) and
(1g) (c) and
(d),
940.10 (2),
940.195,
940.23 (1) (b) and
(2) (b),
940.24 (2) and
940.25 (1) (c) to
(e) and
(1b), "unborn child" means any individual of the human species from fertilization until birth that is gestating inside a woman.
939.75(2)(a)(a) In this subsection, "induced abortion" means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.
939.75(2)(b)2.
2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under
ch. 448.
939.75(2)(b)2h.
2h. An act by any health care provider, as defined in
s. 155.01 (7), that is in accordance with a pregnant woman's power of attorney for health care instrument under
ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman's power of attorney for health care instrument under
ch. 155.
939.75(2)(b)3.
3. An act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.
939.75(2)(b)4.
4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.
939.75(3)
(3) When the existence of an exception 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 exception do not exist in order to sustain a finding of guilt under
s. 940.01 (1) (b),
940.02 (1m),
940.05 (2g),
940.06 (2),
940.08 (2),
940.09 (1) (c) to
(e) or
(1g) (c) or
(d),
940.10 (2),
940.195,
940.23 (1) (b) or
(2) (b),
940.24 (2) or
940.25 (1) (c) to
(e).
939.75 History
History: 1997 a. 295.
