Wis JI-Criminal 1012

Crimes To Consider

The defendant in this case is charged with first degree intentional homicide, and you

must first consider whether the defendant is guilty of that offense. If you are not satisfied

that the defendant is guilty of first degree intentional homicide, you must consider whether or

not the defendant is guilty of second degree intentional homicide, which is a less serious

degree of criminal homicide.

Intentional Homicide

The crimes referred to as first and second degree intentional homicide are different

degrees of homicide. Homicide is the taking of the life of another human being. The degree

of homicide defined by the law depends on the facts and circumstances of each particular

case.

While the law separates intentional homicides into two degrees, there are certain

elements which are common to each crime. Both first and second degree intentional

homicide require that the defendant caused the death of the victim with the intent to kill.

First degree intentional homicide requires the State to prove the additional fact that the

defendant did not act under the influence of adequate provocation. It is for you to decide of

what degree of homicide the defendant is guilty, if guilty at all, according to the instructions

which define the two degrees of intentional homicide.

Statutory Definition of First Degree Intentional Homicide

First degree intentional homicide, as defined in § 940.01 of the Criminal Code of

Wisconsin, is committed by one who causes the death of another human being with the intent

to kill that person or another. In this case, first degree intentional homicide also requires that

the defendant was not acting under the influence of adequate provocation. 1

State's Burden of Proof

Before you may find the defendant may be found guilty of first degree intentional

homicide, the State must prove by evidence which satisfies you beyond a reasonable doubt

that the following three elements were present.

Elements of the Crime that the State Must Prove

1. The defendant caused the death of (name of victim).

"Cause" means that the defendant's act was a substantial factor in producing the

death. 2

2. The defendant acted with the intent to kill ( (name of victim) ) (another human

being). 3

3. The defendant did not act under the influence of adequate provocation. 4

Meaning of "Intent to Kill"

"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. 5

When May Intent Exist?

While the law requires that the defendant acted with intent to kill, it does not require that

the intent exist for any particular length of time before the act is committed. The act need not

be brooded over, considered, or reflected upon for a week, a day, an hour, or even for a

minute. There need not be any appreciable time between the formation of the intent and the

act. The intent to kill may be formed at any time before the act, including the instant before

the act, and must continue to exist at the time of the act.

Deciding About Intent

You cannot look into a person's mind to find intent. Intent to kill must be found, if found

at all, from the defendant's acts, words, and statements, if any, and from all the facts and

circumstances in this case bearing upon intent. 6

Intent and Motive

Intent should not be confused with motive. While proof of intent is necessary to a

conviction, proof of motive is not. "Motive" refers to a person's reason for doing something.

While motive may be shown as a circumstance to aid in establishing the guilt of a defendant,

the State is not required to prove motive on the part of a defendant in order to convict.

Evidence of motive does not by itself establish guilt. You should give it the weight you

believe it deserves under all of the circumstances.

Adequate "Provocation"

The third element of first degree intentional homicide requires that the defendant did not

act under the influence of adequate provocation.

"Provocation" means something the defendant reasonably believes the intended victim

had done which caused the defendant to lose self-control completely at the time of causing

death. 7 This requires that the defendant actually believed that there was provocation and that

the defendant's belief was reasonable.

"Adequate" provocation means sufficient provocation to cause complete loss of self-control in an ordinary person. 8

"Complete loss of self-control" is an extreme mental disturbance or emotional state. It is

a state in which a person's ability to exercise judgment is overcome to the extent that the

person acts uncontrollably. It is the highest degree of anger, rage, or exasperation. 9

To determine whether the defendant reasonably believed that there was provocation by

the victim and whether an ordinary person would have lost self-control completely you

should use the same standard. The standard is what a person of ordinary intelligence and

prudence would have believed and whether that person would have completely lost self-control under the same circumstances.

Jury's Decision – First Degree Intentional Homicide

If you are satisfied beyond a reasonable doubt that the defendant caused the death of

(name of victim) by an act committed with the intent to kill and that the defendant was not

acting under the influence of adequate provocation, you should find the defendant guilty of

first degree intentional homicide.

If you are not so satisfied, you must not find the defendant guilty of first degree

intentional homicide, and you must consider whether the defendant is guilty of second degree

intentional homicide in violation of section 940.05 of the Criminal Code of Wisconsin, which

is a lesser included offense of first degree intentional homicide.

Make Every Reasonable Effort To Agree

You should make every reasonable effort to agree unanimously on the charge of first

degree intentional homicide before considering the offense of second degree intentional

homicide. 10 However, if after full and complete consideration of the evidence, you conclude

that further deliberation would not result in unanimous agreement on the charge of first

degree intentional homicide, you should consider whether the defendant is guilty of second

degree intentional homicide.

Statutory Definition of Second Degree Intentional Homicide

Second degree intentional homicide, as defined in § 940.05 of the Criminal Code of

Wisconsin, is committed by one who causes the death of another human being with the intent

to kill that person or another.

State's Burden of Proof

Before you may find the defendant guilty of second degree intentional homicide, the

State must prove by evidence which satisfies you beyond a reasonable doubt that the

following two elements were present.

Elements of Second Degree Intentional Homicide That the State Must Prove

1. The defendant caused the death of (name of victim).

2. The defendant acted with the intent to kill ( (name of victim) ) (another human

being).

"Cause" and "intent to kill" have already been defined for you.

The difference between first and second degree intentional homicide is that the first

degree offense requires proof of one additional element: that the defendant was not acting

under the influence of adequate provocation. Adequate provocation is not a defense to a

charge of second degree intentional homicide.

Jury's Decision – Second Degree Intentional Homicide

If you are satisfied beyond a reasonable doubt that all the elements of first degree

intentional homicide were present, except the element requiring that the defendant did not act

under the influence of adequate provocation, you should find the defendant guilty of second

degree intentional homicide.

In other words, if you are satisfied beyond a reasonable doubt that the defendant caused

the death of (name of victim) with the intent to kill, 11 you should find the defendant guilty

of second degree intentional homicide.

If you are not so satisfied, you must find the defendant not guilty.

You are not, in any event, to find the defendant guilty of more than one of the foregoing

offenses.