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940.02 NoteUnder 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 AnnotationPossession 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 AnnotationGenerally 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 AnnotationUtter 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 AnnotationThe 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 AnnotationThe punishments for first-degree reckless homicide by delivery of a controlled substance under sub. (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 AnnotationAn actor causes death if the actor’s 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 AnnotationUnder 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 AnnotationWhile 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 80 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 AnnotationUtter disregard for human life is interpreted consistently with previous interpretations of the “depraved mind” element that it replaced. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.
940.02 AnnotationThe only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life” is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim’s life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.
940.02 AnnotationUnder sub. (2) (a), Wisconsin’s “Len Bias” law, a “delivery” occurs when a controlled substance is transferred from one person to another. In this case, the defendant aided and abetted the seller’s delivery of a fatal amount of heroin to the defendant’s daughter by driving her to meet the seller so that the delivery could take place. The defendant assisted both the seller’s delivery of heroin and the defendant’s daughter’s acquisition of it. That the defendant did not communicate directly with the seller, and may have wanted to obtain some of the drugs for the defendant’s own use, did not change the fact that the defendant’s conduct assisted the seller in delivering the drugs to the defendant’s daughter. State v. Hibbard, 2022 WI App 53, 404 Wis. 2d 668, 982 N.W.2d 105, 20-1157.
940.02 AnnotationThe Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
940.02 AnnotationA Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis. O’Brien. 2020 WLR 1065.
940.03940.03Felony 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, 940.204, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.231 (1), 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 NoteJudicial 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 AnnotationTo 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 (1994). See also 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).
940.03 AnnotationAttempted 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 AnnotationOimen, 184 Wis. 2d 423 (1994), affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.
940.03 AnnotationThe 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 AnnotationFor purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.
940.03 AnnotationAn actor causes death if the actor’s 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 AnnotationUnder 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.
940.03 AnnotationFelony murder is committed when the death of another person is caused by a defendant during the commission of certain crimes, including burglary. The elements of burglary include the intent to either steal or to commit a felony. The evidence demonstrated that the defendant in this case forced his way into a building and started shooting with two guns, which was indicative of an intent to recklessly endanger the safety of those inside—a felony. Therefore, the defendant was convicted of a valid crime. State v. Mays, 2022 WI App 24, 402 Wis. 2d 162, 975 N.W.2d 649, 21-0765.
940.04940.04Abortion.
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)(a)(a) Is performed by a physician; and
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 HistoryHistory: 2001 a. 109; 2011 a. 217.
940.04 AnnotationAborting 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 AnnotationSub. (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, 410 U.S. 113 (1973). State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).
940.04 AnnotationThe 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 AnnotationThe state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationDiscussing the viability of an unborn child. Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979).
940.04 AnnotationPoverty 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, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).
940.04 AnnotationDiscussing abortion issues. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983); Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983); Simopoulas v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).
940.04 AnnotationThe constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationWisconsin’s abortion statute, former s. 940.04, 1969 stats., is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationWhen 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).
940.05940.05Second-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 HistoryHistory: 1987 a. 399; 1997 a. 295.
940.05 NoteJudicial 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 NoteAdequate 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 NoteWhen 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 AnnotationThe 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 AnnotationThe 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 AnnotationThe Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
940.06940.06Second-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 HistoryHistory: 1987 a. 399; 1997 a. 295; 2001 a. 109.
940.06 NoteJudicial 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 AnnotationSecond-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 AnnotationThe 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 AnnotationThe second-degree reckless homicide statute requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor’s subjective awareness of that risk. The circuit court’s refusal to instruct the jury about the effect of the parents’ sincere belief in prayer treatment for their child on the subjective awareness element of second-degree reckless homicide did not undermine the parents’ ability to defend themselves. The second-degree reckless homicide statute does not require that the actor be subjectively aware that the actor’s conduct is a cause of the death of the actor’s child. The statute and the jury instructions require only that the actor be subjectively aware that the actor’s conduct created the unreasonable and substantial risk of death or great bodily harm. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044.
940.06 AnnotationThe only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life” is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim’s life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318.
940.06 AnnotationThe Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
940.07940.07Homicide 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 HistoryHistory: 1977 c. 173; 2001 a. 109.
940.07 AnnotationThe 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.
940.08940.08Homicide 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 NoteJudicial 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 AnnotationThe 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 AnnotationIn order to establish that the defendant was guilty of the crime of homicide by negligent handling of a dangerous weapon under sub. (1), the state had to prove three elements beyond a reasonable doubt: 1) the defendant operated or handled a dangerous weapon; 2) the defendant operated or handled a dangerous weapon in a manner constituting criminal negligence; and 3) the defendant’s operation or handling of a dangerous weapon in a manner constituting criminal negligence caused the death of another human being. State v. Langlois, 2018 WI 73, 382 Wis. 2d 414, 913 N.W.2d 812, 16-1409.
940.09940.09Homicide 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).
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2021-22 Wisconsin Statutes updated through 2023 Wis. Act 272 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on September 18, 2024. Published and certified under s. 35.18. Changes effective after September 18, 2024, are designated by NOTES. (Published 9-18-24)