subch. I of ch. 939 SUBCHAPTER I
PRELIMINARY PROVISIONS
939.01 939.01 Name and interpretation. Chapters 939 to 951 may be referred to as the criminal code but shall not be interpreted as a unit. Crimes committed prior to July 1, 1956, are not affected by chs. 939 to 951.
939.01 History History: 1979 c. 89; 1987 a. 332 s. 64.
939.03 939.03 Jurisdiction of state over crime.
939.03(1) (1) A person is subject to prosecution and punishment under the law of this state if any of the following applies:
939.03(1)(a) (a) The person commits a crime, any of the constituent elements of which takes place in this state.
939.03(1)(b) (b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state.
939.03(1)(c) (c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime.
939.03(1)(d) (d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.
939.03(1)(e) (e) The person violates s. 943.201 or 943.203 and the victim, at the time of the violation, is an individual who resides in this state, a deceased individual who resided in this state immediately before his or her death, or an entity, as defined in s. 943.203 (1) (a), that is located in this state.
939.03(1)(f) (f) The person violates s. 943.89 and the matter or thing is deposited for delivery within this state or is received or taken within this state.
939.03(1)(g) (g) The person violates s. 943.90 and the transmission is from within this state, the transmission is received within this state, or it is reasonably foreseeable that the transmission will be accessed by a person or machine within this state.
939.03(2) (2) In this section “state" includes area within the boundaries of the state, and area over which the state exercises concurrent jurisdiction under article IX, section 1, of the constitution.
939.03 History History: 1983 a. 192; 1993 a. 486; 2003 a. 36; 2005 a. 212.
939.03 Annotation Jurisdiction over a crime committed by a Menominee Indian while on the Menominee Indian Reservation is discussed. State ex rel. Pyatskowit v. Montour, 72 Wis. 2d 277, 240 N.W.2d 186 (1976).
939.03 Annotation Treaties between the federal government and Menominee tribe do not deprive the state of criminal subject matter jurisdiction over a crime committed by a Menominee outside the reservation. Sturdevant v. State, 76 Wis. 2d 247, 251 N.W.2d 50 (1977).
939.03 Annotation Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979).
939.03 Annotation A fisherman who violated Minnesota and Wisconsin fishing laws while standing on the Minnesota bank of the Mississippi River was subject to Wisconsin prosecution. State v. Nelson, 92 Wis. 2d 855, 285 N.W.2d 924 (Ct. App. 1979)
939.03 Annotation The state has exclusive jurisdiction over 2nd-offense drunk driving. A 2nd offender may not be charged as a 1st offender under a local ordinance. County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982). But see City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, 15-0869.
939.03 Annotation An unlawful arrest does not deprive a court of personal jurisdiction over a defendant. State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986).
939.03 Annotation Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 Wis. 2d 206, 548 N.W.2d 134 (Ct. App. 1996), 95-2469.
939.03 Annotation Objections to subject matter jurisdiction that turn on a question of law may not be waived by a guilty plea, but objections to subject matter jurisdiction based on a factual dispute do not survive. State v. Bratrud, 204 Wis. 2d 445, 555 N.W.2d 662 (Ct. App. 1995), 94-3402.
939.03 Annotation A trial court did not lose subject matter jurisdiction over a count in a criminal complaint when an oral amendment of the count did not include one of the elements of the new offense. State v. Diehl, 205 Wis. 2d 1, 555 N.W.2d 174 (Ct. App. 1996), 95-2444.
939.03 Annotation A sentencing court is accorded incidental powers necessary to carry out its judicial functions and may modify an improper sentence, but it is not competent to enter a money judgment against the state for the recovery of improperly collected restitution under an improper sentence. State v. Minniecheske, 223 Wis. 2d 493, 590 N.W.2d 17 (Ct. App. 1998), 98-1369.
939.03 Annotation For purposes of jurisdictional analysis, the defendant father's concealment in Canada of a child taken from the child's mother in Wisconsin was inseparable from the consequences of the concealment in Wisconsin, thus giving a Wisconsin court jurisdiction under sub. (1) (c) to try the defendant for a violation of s. 948.31. State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.
939.03 Annotation This section relates to both personal and territorial jurisdiction. When a trial court validly acquired territorial jurisdiction over the charged crime, it could not lose jurisdiction over a lesser-included crime. State v. Randle, 2002 WI App 116, 2002 WI App 116, 252 Wis. 2d 743, 647 N.W.2d 324, 01-1448.
939.03 Annotation If there is no serious evidentiary dispute that the trial court has territorial jurisdiction, a special instruction on territorial jurisdiction need not be given to the jury. A person may be prosecuted for doing an act outside this state that has a criminally proscribed consequence within the state. State v. Brown, 2003 WI App 34, 260 Wis. 2d 125, 659 N.W.2d 110, 02-1000.
939.03 Annotation The constituent elements of an offense under sub. (1) (a) are those elements of the criminal offense that the state is required to prove beyond a reasonable doubt in the prosecution of the offense. A constituent element of a criminal offense may be either the wrongful deed that comprises the physical component or the state of mind that the prosecution must prove that a defendant had. For 1st-degree homicide, sub. (1) (a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. State v. Anderson, 2005 WI 54, 280 Wis. 2d 104, 695 N.W.2d 731, 03-3478.
939.05 939.05 Parties to crime.
939.05(1)(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
939.05(2) (2) A person is concerned in the commission of the crime if the person:
939.05(2)(a) (a) Directly commits the crime; or
939.05(2)(b) (b) Intentionally aids and abets the commission of it; or
939.05(2)(c) (c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.
939.05 History History: 1993 a. 486.
939.05 Annotation It is desirable, but not mandatory, that an information refer to this section if 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 this 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 (1970).
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 (1971).
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 (1971).
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 (1971).
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 the defendant claimed only intending to rob and that an accomplice did the shooting. State v. Cydzik, 60 Wis. 2d 683, 211 N.W.2d 421 (1973).
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 (1973).
939.05 Annotation Conduct undertaken to intentionally aid another in the commission of a crime that 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 (1977).
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 (1977).
939.05 Annotation There are 2 party-to-a-crime theories. Aiding and abetting under sub. (2) (b) and conspiracy under sub. (2) (c). State v. Charbarneau, 82 Wis. 2d 644, 264 N.W.2d 227 (1978).
939.05 Annotation Withdrawal from a conspiracy under sub. (2) (c) must be timely. Zelenka v. State, 83 Wis. 2d 601, 266 N.W.2d 279 (1978).
939.05 Annotation This section applies to all crimes unless 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 Multiple conspiracies and single conspiracies are distinguished. Bergeron v. State, 85 Wis. 2d 595, 271 N.W.2d 386 (1978).
939.05 Annotation A jury need not unanimously agree whether the 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 the 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 aiding and abetting 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 The jury need not unanimously agree as to in which of the alternative ways under sub. (2) a defendant has committed the offense under the party to the crime theory. While there may be distinctions between aiding abetting and conspiracy, the distinctions are often blurred. 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. (2) (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, if 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 There is a distinction between conspiracy as a substantive inchoate crime under s. 939.31 and conspiracy as a theory of prosecution for a substantive crime under s. 939.05 (2) (c). State v. Jackson, 2005 WI App 104, 281 Wis. 2d 137, 701 N.W.2d 42, 04-1603.
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; 2007 a. 97.
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), 96-0914.
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 (1976).
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), 94-2187.
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.
939.20 History History: 1979 c. 89; 1987 a. 332 s. 64; 1987 a. 399, 403.
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(3) (3) “Alcohol concentration" has the meaning given in s. 340.01 (1v).
939.22(4) (4) “Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.
939.22(5) (5) “Commission warden" means a conservation warden employed by the Great Lakes Indian Fish and Wildlife Commission.
939.22(6) (6) “Crime" has the meaning designated in s. 939.12.
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(9r) (9r) “Criminal intent" has the meaning designated in s. 939.23.
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 ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in s. 941.295 (1c) (a); 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(11) (11) “Drug" has the meaning specified in s. 450.01 (10).
939.22(12) (12) “Felony" has the meaning designated in s. 939.60.
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(15) (15) “Hazardous inhalant" means a substance that is ingested, inhaled, or otherwise introduced into the human body in a manner that does not comply with any cautionary labeling that is required for the substance under s. 100.37 or under federal law, or in a manner that is not intended by the manufacturer of the substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
939.22(16) (16) “Human being" when used in the homicide sections means one who has been born alive.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 20 and all Supreme Court and Controlled Substances Board Orders effective on or before June 24, 2017. Published and certified under s. 35.18. Changes effective after June 24, 2017 are designated by NOTES. (Published 6-24-17)