940.01 First-degree intentional homicide.

403 words·~2 min read·/wi/chapter-940/940-01

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Offenses.

(a)Except as provided in sub.

(2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

(b)Except as provided in sub.

(2), 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 A felony.

(2)Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05 :

(a)Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44 .

(b)Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

(c)Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.

(d)Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45

(1).

(3)Burden of proof. When the existence of an affirmative defense under sub.

(2)has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub.

(1).

940.01 Note Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub.

(2)formerly contained a narrower definition of “intent to kill” than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.

940.01 Note The affirmative defenses specified in sub.

(2)were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub.

(2)specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub.

(b)are reasonable. Section 939.48.