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 first-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 two 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 Distinguishing multiple conspiracies and single conspiracies. Bergeron v. State, 85 Wis. 2d 595, 271 N.W.2d 386 (1978).
939.05 Annotation A conspiracy commences with an agreement between two 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 (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. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984).
939.05 Annotation Sub. (2) (c) may be violated when the defendant solicits a second person to procure a third 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). See also 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 sub. (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. Schuessler. 66 MLR 344 (1983).
939.05 Annotation Application of Gipson's Unanimous Verdict Rationale to the Wisconsin Party to a Crime Statute. Baumgarth. 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. Ostos-Irwin. 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 sub. (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.
939.22(18) (18)“Intentionally" has the meaning designated in s. 939.23.
939.22(19) (19)“Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
939.22(20) (20)“Misdemeanor" has the meaning designated in s. 939.60.
939.22(20d) (20d)“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.
939.22(20m) (20m)“Offense related to ethical government" means a violation of s. 13.69 (6m), 19.58 (1) (b), or 946.12.
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)(b) (b) First-degree intentional homicide, as prohibited in s. 940.01.
939.22(21)(c) (c) Second-degree intentional homicide, as prohibited in s. 940.05.
939.22(21)(d) (d) Battery, as prohibited in s. 940.19 or 940.195.
939.22(21)(e) (e) Battery, special circumstances, as prohibited in s. 940.20.
939.22(21)(em) (em) Battery or threat to witness, as prohibited in s. 940.201.
939.22(21)(f) (f) Mayhem, as prohibited in s. 940.21.
939.22(21)(g) (g) Sexual assault, as prohibited in s. 940.225.
939.22(21)(h) (h) False imprisonment, as prohibited in s. 940.30.
939.22(21)(i) (i) Taking hostages, as prohibited in s. 940.305.
939.22(21)(j) (j) Kidnapping, as prohibited in s. 940.31.
939.22(21)(k) (k) Intimidation of witnesses, as prohibited in s. 940.42 or 940.43.
939.22(21)(L) (L) Intimidation of victims, as prohibited in s. 940.44 or 940.45.
939.22(21)(m) (m) Criminal damage to property, as prohibited in s. 943.01.
939.22(21)(mg) (mg) Criminal damage to or threat to criminally damage the property of a witness, as prohibited in s. 943.011 or 943.017 (2m).
939.22(21)(n) (n) Arson of buildings or damage by explosives, as prohibited in s. 943.02.
939.22(21)(o) (o) Burglary, as prohibited in s. 943.10.
939.22(21)(p) (p) Theft, as prohibited in s. 943.20.
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(21)(qm) (qm) Carjacking, as prohibited in s. 943.231.
939.22(21)(r) (r) Robbery, as prohibited in s. 943.32.
939.22(21)(s) (s) Sexual assault of a child, as prohibited in s. 948.02.
939.22(21)(t) (t) Repeated acts of sexual assault of the same child, as prohibited in s. 948.025.
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2021-22 Wisconsin Statutes updated through 2023 Wis. Act 93 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on March 22, 2024. Published and certified under s. 35.18. Changes effective after March 22, 2024, are designated by NOTES. (Published 3-22-24)