940.02 Note
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt,
21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
940.02 Annotation
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons,
164 Wis. 2d 506,
476 N.W.2d 283 (Ct. App. 1991).
940.02 Annotation
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan,
195 Wis. 2d 388,
536 N.W.2d 425 (Ct. App. 1995),
93-2611.
940.02 Annotation
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds,
229 Wis. 2d 67,
598 N.W.2d 290 (Ct. App. 1999),
98-2171.
940.02 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.02 Annotation
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
08-1968.
940.02 Annotation
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below,
2011 WI App 64,
333 Wis. 2d 690,
799 N.W.2d 95,
10-0798.
940.02 Annotation
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below,
2011 WI App 64,
333 Wis. 2d 690,
799 N.W.2d 95,
10-0798.
940.02 Annotation
While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for human life. State v. Geske,
2012 WI App 15,
339 Wis. 2d 170,
810 N.W.2d 226,
10-2808.
940.02 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.03
940.03
Felony murder. Whoever causes the death of another human being while committing or attempting to commit a crime specified in
s. 940.19,
940.195,
940.20,
940.201,
940.203,
940.225 (1) or
(2) (a),
940.30,
940.31,
943.02,
943.10 (2),
943.23 (1g), or
943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.
940.03 Note
Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W.2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson,
5 Wis. 2d 595,
93 N.W.2d 355 (1958). [Bill 191-S]
940.03 Annotation
To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase "while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen,
184 Wis. 2d 423,
516 N.W.2d 399 (Ct. App. 1994), State v. Rivera,
184 Wis. 2d 485,
516 N.W.2d 391 (1994) and State v. Chambers,
183 Wis. 2d 316,
515 N.W.2d 531 (Ct. App. 1994).
940.03 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 Wis. 2d 61,
579 N.W.2d 783 (Ct. App. 1998),
97-1558.
940.03 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.03 Annotation
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below,
2011 WI App 64,
333 Wis. 2d 690,
799 N.W.2d 95,
10-0798.
940.03 Annotation
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below,
2011 WI App 64,
333 Wis. 2d 690,
799 N.W.2d 95,
10-0798.
940.04(1)(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
940.04(2)
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
940.04(2)(a)
(a) Intentionally destroys the life of an unborn quick child; or
940.04(2)(b)
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
940.04(5)
(5) This section does not apply to a therapeutic abortion which:
940.04(5)(b)
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
940.04(5)(c)
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
940.04(6)
(6) In this section "unborn child" means a human being from the time of conception until it is born alive.
940.04 History
History: 2001 a. 109;
2011 a. 217.
940.04 Annotation
Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla,
87 Wis. 2d 441,
275 N.W.2d 112 (Ct. App. 1978).
940.04 Annotation
Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to
Roe v. Wade. State v. Black,
188 Wis. 2d 639,
526 N.W.2d 132 (1994).
940.04 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.04 Annotation
This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade,
410 U.S. 113 (1973).
940.04 Annotation
The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo,
423 U.S. 9 (1975).
940.04 AnnotationThe viability of an unborn child is discussed. Colautti v. Franklin,
439 U.S. 379 (1979).
940.04 Annotation
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae,
448 U.S. 297 (1980).
940.04 Annotation
Abortion issues are discussed. Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft,
462 U.S. 476 (1983); Simopoulas v. Virginia,
462 U.S. 506 (1983).
940.04 Annotation
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey,
505 U.S. 833,
120 L. Ed. 2d 674 (1992).
940.04 Annotation
Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann,
310 F. Supp. 293 (1970).
940.04 Annotation
When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann,
368 F. Supp. 1352 (1974).
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
sub. (1), 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(2g)
(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
940.05(2g)(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(2g)(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(2h)
(2h) In prosecutions under
sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill 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;
1997 a. 295.
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 Note
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 Note
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
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block,
170 Wis. 2d 676,
489 N.W.2d 715 (Ct. App. 1992).
940.05 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.05 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.06
940.06
Second-degree reckless homicide. 940.06(1)
(1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.
940.06(2)
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.
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
Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998),
96-2830.
940.06 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.06 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 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 G felony.
940.07 History
History: 1977 c. 173;
2001 a. 109.
940.07 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.08
940.08
Homicide by negligent handling of dangerous weapon, explosives or fire. 940.08(1)
(1) Except as provided in
sub. (3), 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 G felony.
940.08(2)
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
940.08(3)
(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
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
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
940.09
940.09
Homicide by intoxicated use of vehicle or firearm. 940.09(1)(1) Any person who does any of the following may be penalized as provided in
sub. (1c):
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)(am)
(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
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 0.08.
940.09(1)(c)
(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(cm)
(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1)(d)
(d) Causes the death of an unborn child 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)(e)
(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
