Homicide Charges

First Degree Intentional Homicide

First Degree Intentional Homicide is defined by section 940.01 of Wisconsin Statutes as committed by someone who causes the death of another human being with the intent to kill that person or another.  This means that if a Defendant is trying to kill one person, and mistakenly kills someone else, they can be charged with First Degree Intentional Homicide.  This charge is the most serious of all crimes.  It is a felony, and the likely sentence for someone convicted of First Degree Intentional Homicide is life in prison. Elements of this charge are:

  • The Defendant caused the Death of another human being.
  • The Defendant acted with the Intent to kill that human being.
  • “Intent to kill” means that the Defendant had the mental purpose to take the life of another human being or was aware that his/her conduct was practically certain to cause the death of another human being.
  • “Intent to kill” does not require that the intent exists for any particular length of time before the act is committed.  There is no requirement that the intent exist for a week, a day, an hour, or even a minute.  The intent to kill may be formed at any time before the act, including the moment before the death.
  • Intent to kill is different from motive to kill.  There is no requirement for the State to prove that a motive existed at the time of death, only that the Defendant intended to kill the person.

Self-defense is obviously an important affirmative defense to a charge of First Degree Intentional Homicide, as well as any Homicide charge.  It is NEVER helpful to a defendant to talk to the police and try to explain his/her side of the story.  I’ve seen time and time again where people go in and tell the authorities their story only to have it come back to hurt their defense.  It is crucial to hire an experienced Criminal Defense Lawyer immediately.

Second Degree Intentional Homicide

Second Degree Intentional Homicide is defined in section 940.05 of the Criminal Code of Wisconsin.  Second Degree Intentional Homicide is simply a lesser charge than First Degree Intentional Homicide, in fact it is a “lesser included offense” of First Degree Intentional Homicide.  Juries may convict on Second Degree if they believe that the Defendant unreasonably believed that Self Defense was appropriate.  See “self defense”, in this site for a deeper discussion of how a Defendant might defend against First Degree Homicide charges in Wisconsin.  The elements of Second Degree Intentional Homicide are:

  • The Defendant caused the death of another person.
  • The Defendant acted with the intent to kill that person.
  • The Defendant did not “reasonably” believe that s/he was terminating or preventing an unlawful interference with his/her person or did not “reasonably” believe that the force used was necessary to prevent imminent death or great bodily harm to himself/herself. This is an important distinction, because while a Defendant might “actually” believe that s/he was acting “reasonably”, the jury might disagree without a vigorous argument from his/her Wisconsin Criminal Defense Lawyer.

Self Defense

In Wisconsin, the Criminal Code provides that a person has the right, or the privilege, to use force against another person in order to prevent or terminate what s/he reasonably believes to be an unlawful interference with his/her person.  But, that force must be limited to the amount of force s/he believes is reasonably necessary to prevent or terminate that unlawful interference.  Deadly force is not legally acceptable unless s/he reasonably believes that such deadly force is necessary to prevent imminent death or great bodily harm to himself or herself.

Wisconsin law requires that juries find the Defendant Not Guilty of either First or Second Degree Intentional Homicide if the jury finds that the Defendant reasonably believed that s/he was preventing or terminating an unlawful interference with his/her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself/herself.  This is the definition of Self-Defense.  Clearly, the main issue here is whether the jury finds that the Defendant “Reasonably” believed that deadly force was necessary.  This is a key factor for an experienced Wisconsin Criminal Defense Attorney to develop.

Reckless Homicide

There are two degrees of Reckless Homicide in Wisconsin.  They are First Degree Reckless Homicide and Second Degree Reckless Homicide.  They simply vary in the severity of the acts alleged against a Defendant.  But they both involve the taking of a life of another Human Being by criminally reckless behavior.  The degree of Reckless Homicide as defined in Wisconsin Law is determined by the facts and circumstances of each particular case.

First Degree Reckless Homicide is defined in section 940.02(1) of the Criminal Code of Wisconsin as committed by one who recklessly causes the death of another Human Being by conduct that show utter disregard for human life.  The elements that the State must prove to convict on this charge are:

  • The Defendant caused the death of another person.
  • “Cause” means that the Defendant’s conduct was a substantial factor in producing the death.
  • The Defendant caused the death by “criminally reckless” conduct.
  • “Criminally reckless conduct” means that the conduct created a risk of death or bodily harm to another person; the risk of death or great bodily harm was unreasonable and substantial; and, the Defendant was aware that his/her conduct created the unreasonable and substantial risk of death or great bodily harm.
  • The circumstances of the Defendant’s conduct showed utter disregard for Human life.

Self-defense clearly is not a factor in a Reckless Homicide charge.  The State does not allege an intentional act, merely behavior that could be seen as reckless and likely to result in death.  The charge of Second Degree Reckless Homicide has the same element as First Degree, but the State does not need to allege or prove the “utter disregard for Human life” element.

Felony Murder

Felony Murder is defined in the Criminal Code of Wisconsin in section 940.03.  It is committed by one who causes the death of another Human Being while committing a Felony.  This charge is typically filed during a Robbery of some sort and someone involved is killed.  It is important to keep in mind that it doesn’t matter who is killed, the victim or even an accomplice co-defendant.  If there are more than one person committing a felony and anyone dies, all the remaining co-defendants can be charged with Felony Murder.  This is a charge that is nearly always charged as Party to a Crime under sec. 939.05. (See separate section in this website regarding Party to a Crime.)

The elements that the State must prove to convict on a Wisconsin Felony Murder charge are actually very simple.  There are only two:

  • The Defendant committed a Felony.
  • The death of a Human Being was caused by the commission of the Felony.

The meaning of “caused” as it relates to the charge of Felony Murder under section 940.03 Wis. Stats., is that the commission of the Felony was a substantial factor in the death.  As discussed above, this would include a store owner shooting and killing a co-actor in a robbery.  The remaining co-actor(s) would be charged with Felony Murder for their co-actor’s death.

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