939.32 Annotation
Attempted 1st-degree murder was shown when only the fact of the gun misfiring and the action of the intended victim prevented completion of the crime. Austin v. State,
52 Wis. 2d 716,
190 N.W.2d 887 (1971).
939.32 Annotation
The victim's kicking of the defendant in the mouth and other resistance was a valid extraneous factor preventing the completion of a crime, an essential requirement for the crime of attempted rape. Adams v. State,
57 Wis. 2d 515,
204 N.W.2d 657 (1973).
939.32 Annotation
The screams and struggles of an intended rape victim were an effective intervening extrinsic force not under the defendant's control. Leach v. State,
83 Wis. 2d 199,
265 N.W.2d 495 (1978).
939.32 Annotation
The failure to consummate the crime is not an essential element of criminal attempt under sub. (2). Berry v. State,
90 Wis. 2d 316,
280 N.W.2d 204 (1979).
939.32 Annotation
The intervention of an extraneous factor is not an essential element of criminal attempt. Hamiel v. State,
92 Wis. 2d 656,
285 N.W.2d 639 (1979).
939.32 Annotation
To prove attempt, the state must prove intent to commit a specific crime accompanied by sufficient acts to demonstrate unequivocally that it was improbable that the accused would have desisted of his or her own free will. State v. Stewart,
143 Wis. 2d 28,
420 N.W.2d 44 (1988).
939.32 Annotation
Subs. (1) and (2) enumerate all offenses that may be prosecuted as attempts. State v. Cvorovic,
158 Wis. 2d 630,
462 N.W.2d 897 (Ct. App. 1990).
939.32 Annotation
The meaning of “have an intent to" in sub. (3) should be defined and interpreted in relation to all criminal statutes. State v. Weeks,
165 Wis. 2d 200,
477 N.W.2d 642 (Ct. App. 1991).
939.32 Annotation
When 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 Wis. 2d 716,
519 N.W.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 Wis. 2d 124,
528 N.W.2d 483 (Ct. App. 1995).
939.32 Annotation
Attempted felony murder, s. 940.03, 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.
939.32 Annotation
The conduct element of sub. (3) is satisfied when the accused engages in conduct that 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 Wis. 2d 526,
581 N.W.2d 544 (Ct. App. 1998),
97-2235.
939.32 Annotation
Some crimes include attempt and cannot be combined with the general attempt statute. One cannot attempt to attempt to cause. State v. DeRango,
229 Wis. 2d 1,
599 N.W.2d 27 (Ct. App. 1999),
98-0642.
939.32 Annotation
Neither
Melvin nor
Briggs purport to establish a general rule or address whether possession crimes may be charged as attempted crimes. There is no general rule that a crime may be charged as an attempt only when the crime has intent as an element. Unlike crimes with no state of mind element, the felon in possession of a firearm offense requires proof of knowledge. This makes the offense amenable, even under
Briggs, to be charged as an attempted crime. State v. Henning,
2013 WI App 15,
346 Wis. 2d 246,
828 N.W.2d 235,
10-2449.
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 is involuntarily produced and does one of the following:
939.42(1)
(1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.
939.42(2)
(2) Negatives the existence of a state of mind essential to the crime.
939.42 History
History: 1987 a. 399;
2013 a. 307.
939.42 Annotation
To be relieved from responsibility for criminal acts, it is not enough for a defendant to establish that he or she was under the influence of intoxicating beverages; the defendant must establish that degree of intoxication that means he or she was utterly incapable of forming the intent requisite to the commission of the crime charged. State v. Guiden,
46 Wis. 2d 328,
174 N.W.2d 488 (1970).
939.42 Annotation
This section does not afford a defense when drugs were taken voluntarily and the facts demonstrate that there was an intent to kill and conceal the crime. Gibson v. State,
55 Wis. 2d 110,
197 N.W.2d 813 (1972).
939.42 Annotation
Evidence of addiction was properly excluded as a basis for showing “involuntariness." Loveday v. State,
74 Wis. 2d 503,
247 N.W.2d 116 (1976).
939.42 Annotation
The intoxication instruction did not impermissibly shift the burden of proof to the accused. State v. Reynosa,
108 Wis. 2d 499,
322 N.W.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 Wis. 2d 14,
528 N.W.2d 22 (Ct. App. 1995).
939.42 Annotation
It is not a requirement of the defense of involuntary intoxication when intoxication is caused by prescription drugs that the defendant did not know of the drug's intoxicating effect. Intoxication resulting from compliance with a physician's advice will not be deemed voluntary just because the defendant was aware of potential adverse side effects. State v. Gardner,
230 Wis. 2d 32,
601 N.W.2d 670 (Ct. App. 1999),
98-2655.
939.42 Annotation
To be entitled to an instruction on involuntary intoxication, the defendant must come forward with credible and sufficient evidence of intoxication to the extent that the defendant was unable to distinguish right from wrong. State v. Gardner,
230 Wis. 2d 32,
601 N.W.2d 670 (Ct. App. 1999),
98-2655.
939.42 Annotation
Alcoholism as a defense. 53 MLR 445.
939.42 Annotation
Due Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.
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 relied on a governmental official's statutorily required legal opinion would impose an unconscionable rigidity in the law. State v. Davis,
63 Wis. 2d 75,
216 N.W.2d 31 (1974).
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 Wis. 2d 100,
555 N.W.2d 197 (Ct. App. 1996),
96-0235.
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 Note
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 Note
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 principles (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]
939.44 Annotation
Adequate provocation includes both subjective and objective components. As to the subjective component, the defendant must actually believe the provocation occurred, and the lack of self-control must be caused by the provocation. As to the objective component, the provocation must be such that would cause an ordinary, reasonable person to lack self-control completely, and the defendant's belief that the provocative acts occurred must be reasonable. State v. Schmidt,
2012 WI App 113,
344 Wis. 2d 336,
824 N.W.2d 839,
11-1903.
939.44 Annotation
To place provocation in issue, there need be only “some" evidence supporting the defense. The defendant's proffered evidence of provocation must be examined as a whole to determine whether the “some evidence" threshold is satisfied. It is an all-or-nothing determination as to whether the jury hears any evidence of the affirmative defense. The adequate provocation inquiry is fact-driven. If the victim's prior acts could contribute to a reasonable person's loss of self-control at the time of the crime, the acts are relevant to the objective component of the defense. State v. Schmidt,
2012 WI App 113,
344 Wis. 2d 336,
824 N.W.2d 839,
11-1903.
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
939.45(5)(a)3.
3. “Person responsible for the child's welfare" includes the child's parent, stepparent or guardian; an employee of a public or private residential home, institution or agency in which the child resides or is confined or that provides services to the child; or any other person legally responsible for the child's welfare in a residential setting.
939.45(5)(b)
(b) When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.
939.45(6)
(6) When for any other reason the actor's conduct is privileged by the statutory or common law of this state.
939.45 Annotation
The privilege under sub. (3) for public officials acting with apparent authority did not apply to a volunteer fire fighter driving while under the influence of an intoxicant. State v. Schoenheide,
104 Wis. 2d 114,
310 N.W.2d 650 (Ct. App. 1981).
939.45 Annotation
A foster parent is a “person legally responsible for the child's welfare" under sub. (5). State v. West,
183 Wis. 2d 46,
515 N.W.2d 484 (Ct. App. 1994).
939.45 Annotation
A mother's live-in boyfriend did not have parental immunity under sub. (5). The boyfriend did not have legal responsibility for the mother's children, and the term “parent" will not be interpreted to include persons
in loco parentis. State v. Dodd,
185 Wis. 2d 560,
518 N.W.2d 300 (Ct. App. 1994)
939.45 Annotation
A convicted felon's possession of a firearm is privileged under sub. (6) in limited enumerated circumstances. State v. Coleman,
206 Wis. 2d 199,
556 N.W.2d 701 (1996),
95-0917.
939.45 Annotation
There is no statutory or common law privilege for the crime of carrying a concealed weapon under s. 941.23. State v. Dundon,
226 Wis. 2d 654,
594 N.W.2d 780 (1999),
97-1423.
939.45 Annotation
Sub. (6) incorporates excusable homicide by accident or misfortune. Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins,
2002 WI 101,
255 Wis. 2d 265,
647 N.W.2d 244,
00-0064.
939.45 Annotation
A defendant may demonstrate that he or she was acting lawfully, a necessary element of an accident defense, by showing that he or she was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins,
2002 WI 101,
255 Wis. 2d 265,
647 N.W.2d 244,
00-0064.
939.45 Annotation
To overcome the privilege of parental discipline in sub. (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B.,
2005 WI App 115,
283 Wis. 2d 731,
699 N.W.2d 641,
04-1424.
939.45 Annotation
Testimony supporting the defendant father's assertion that he was beaten with a belt as a child was not relevant to whether the amount of force he used in spanking his daughter was objectively reasonable. A parent may not abuse his or her child and claim that conduct is reasonable based on his or her history of being similarly abused. State v. Williams,
2006 WI App 212,
296 Wis. 2d 834,
723 N.W.2d 719,
05-2282.
939.46(1)(1)
A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
939.46(2)
(2) It is no defense to a prosecution of a married person that the alleged crime was committed by command of the spouse nor is there any presumption of coercion when a crime is committed by a married person in the presence of the spouse.
939.46(3)
(3) A petitioner under s.
813.12 or
813.122, or an individual whose parent, stepparent, or legal guardian filed a petition under s.
813.122 on behalf of the individual as a child victim, as defined in s.
813.122 (1) (c), has an affirmative defense for an offense under s.
175.35 (2e) that is punishable under s.
175.35 (3) (b) 2., or for an offense under s.
941.2905, if the person prohibited from possessing a firearm was the respondent in the action under s.
813.12 or
813.122.
939.46 Note
Judicial Council Note, 1988: Sub. (1) is amended by conforming references to the statute titles created by this bill. Since coercion mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.46 Annotation
The state must disprove an asserted coercion defense beyond a reasonable doubt. Moes v. State,
91 Wis. 2d 756,
284 N.W.2d 66 (1979).
939.46 Annotation
The coercion defense is limited to the most severe form of inducement. It requires finding that the actor believed he or she was threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support giving an instruction. That the defendant reasonably believed that a companion would attempt to harm him or her if he if he or she did not comply with the companion's orders only suggests that the safest course was to comply with companion's orders, not that it was the only course. State v. Keeran,
2004 WI App 4,
268 Wis. 2d 761,
674 N.W.2d 570,
01-1892.
939.47
939.47
Necessity. Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
939.47 History
History: 1987 a. 399.
939.47 Note
Judicial Council Note, 1988: This section is amended by conforming references to the statute titles created by this bill. Since necessity mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
939.47 Annotation
The defense of necessity was unavailable to a demonstrator who sought to stop a shipment of nuclear fuel on the grounds of safety. State v. Olsen,
99 Wis. 2d 572,
299 N.W.2d 632 (Ct. App. 1980).
939.47 Annotation
Heroin addiction is not a “natural physical force" as used in this section. An addict, caught injecting heroin in jail, who was not provided methadone as had been promised, was not entitled to assert necessity against a charge of possession of heroin because his addiction ultimately resulted from his conscious decision to start using illegal drugs. State v. Anthuber,
201 Wis. 2d 512,
549 N.W.2d 477 (Ct. App. 1996),
95-1365.
939.48
939.48
Self-defense and defense of others. 939.48(1)(1)
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
939.48(1m)(a)2.
2. “Place of business" means a business that the actor owns or operates.
939.48(1m)(ar)
(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub.
(1) and either of the following applies:
