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
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
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
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
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
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
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
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
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
This section applies to all crimes unless legislative intent clearly indicates otherwise. State v. Tronca, 84 Wis. 2d 68
, 267 N.W.2d 216
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
Multiple conspiracies and single conspiracies are distinguished. Bergeron v. State, 85 Wis. 2d 595
, 271 N.W.2d 386
A conspiracy commences with an agreement between 2 or more persons to direct their conduct toward the realization of a criminal objective, and each member of the conspiracy must individually and consciously intend the realization of the particular criminal venture. Each conspirator must have an individual stake in the conspiracy. Bergeron v. State, 85 Wis. 2d 595
, 271 N.W.2d 386
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
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
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.)
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
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
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
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. Ivy, 119 Wis. 2d 591
, 350 N.W.2d 622
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).
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).
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).
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
The unanimity requirement was satisfied when the jury unanimously found that the accused participated in the crime. Lampkins v. Gagnon, 710 F. 2d 374
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
Liability for coconspirator's crimes in the Wisconsin party to a crime statute. 66 MLR 344 (1983).
Application of Gipson's unanimous verdict rationale to the Wisconsin party to a crime statute. 1980 WLR 597.
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.
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
History: 1979 c. 89
; 1987 a. 332
; 2007 a. 97
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.
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.
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
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
Provisions which apply only to chapters 939 to 951.
apply only to crimes defined in chs. 939
. Other sections in ch. 939
apply to crimes defined in other chapters of the statutes as well as to those defined in chs. 939
Words and phrases defined.
In chs. 939
, 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
“Airgun" means a weapon which expels a missile by the expansion of compressed air or other gas.
“Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.
“Commission warden" means a conservation warden employed by the Great Lakes Indian Fish and Wildlife Commission.
“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)
; 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.
“Criminal gang member" means any person who participates in criminal gang activity, as defined in s. 941.38 (1) (b)
, with a criminal gang.
“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.
“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.
“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.
“Human being" when used in the homicide sections means one who has been born alive.
“Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
“Offense against an elderly or vulnerable person" means a violation of s. 940.285 (2) (a)
that caused death, great bodily harm, or bodily harm to the victim or s. 940.295 (3) (b)
that caused death, great bodily harm, or bodily harm to the victim.
“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:
Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in s. 961.41 (1)
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
“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. “Peace officer" includes a commission warden and a university police officer, as defined in s. 175.42 (1) (b)
“Petechia" means a minute colored spot that appears on the skin, eye, eyelid, or mucous membrane of a person as a result of localized hemorrhage or rupture to a blood vessel or capillary.
“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.
“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.
“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.
“Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.