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 Wis. 2d 606,
173 N.W.2d 634.
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.
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.
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 he claims that he only intended to rob and an accomplice did the shooting. State v. Cydzik,
60 Wis. 2d 683,
211 N.W.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 Wis. 2d 262,
212 N.W.2d 103.
939.05 Annotation
Evidence establishing that the defendant's car was used in a robbery getaway was sufficient to convict the defendant of armed robbery, party to a crime, where the defendant admitted sole possession of the car on the night of the robbery. Taylor v. State,
74 Wis. 2d 255,
246 N.W.2d 518.
939.05 Annotation
Conduct undertaken to intentionally aid another in the 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 Wis. 2d 411,
249 N.W.2d 529.
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.
939.05 Annotation
This section applies to all crimes except where 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
A jury need not unanimously agree whether 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 that 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 complicity 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
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. (1) (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, 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 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
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.
939.10 Annotation
The common law privilege to forcibly resist an unlawful arrest is abrogated. State v. Hobson,
218 Wis. 2d 350,
577 N.W.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
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.
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).
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:
939.22(21)(a)
(a) Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in
s. 961.41 (1).
939.22(21)(q)
(q) Taking, driving or operating a vehicle, or removing a part or component of a vehicle, without the owner's consent, as prohibited in
s. 943.23.
939.22(22)
(22) "Peace officer" means any person vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes.
939.22(24)
(24) "Place of prostitution" means any place where a person habitually engages, in public or in private, in nonmarital acts of sexual intercourse, sexual gratification involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact for anything of value.
939.22(28)
(28) "Property of another" means property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair, even though the actor may also have a legal interest in the property.
939.22(30)
(30) "Public officer"; "public employee". A "public officer" is any person appointed or elected according to law to discharge a public duty for the state or one of its subordinate governmental units. A "public employee" is any person, not an officer, who performs any official function on behalf of the state or one of its subordinate governmental units and who is paid from the public treasury of the state or subordinate governmental unit.
939.22(32)
(32) "Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.
939.22(34)
(34) "Sexual contact" means the intentional touching of the clothed or unclothed intimate parts of another person with any part of the body clothed or unclothed or with any object or device, the intentional touching of any part of the body clothed or unclothed of another person with the intimate parts of the body clothed or unclothed, or the intentional penile ejaculation of ejaculate or intentional emission of urine or feces upon any part of the body clothed or unclothed of another person, if that intentional touching, ejaculation or emission is for the purpose of sexual humiliation, sexual degradation, sexual arousal or gratification.
939.22(36)
(36) "Sexual intercourse" requires only vulvar penetration and does not require emission.
939.22(38)
(38) "Substantial bodily harm" means bodily injury that causes a laceration that requires stitches; any fracture of a bone; a burn; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.
939.22(40)
(40) "Transfer" means any transaction involving a change in possession of any property, or a change of right, title, or interest to or in any property.
939.22(42)
(42) "Under the influence of an intoxicant" means that the actor's ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcohol beverage, of a controlled substance or controlled substance analog under
ch. 961, of any combination of an alcohol beverage, controlled substance and controlled substance analog, or of any other drug or of an alcohol beverage and any other drug.
939.22(44)
(44) "Vehicle" means any self-propelled device for moving persons or property or pulling implements from one place to another, whether such device is operated on land, rails, water, or in the air.
