Wis JI-Criminal 1031

Statutory Definition of the Crime

Felony murder, as defined in § 940.03 of the Criminal Code of Wisconsin, is

committed by one who causes the death of another human being while attempting to

commit the crime of (name of crime).1

State’s Burden of Proof

Before you may find the defendant guilty of felony murder, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following elements were

present.

Elements of Felony Murder That the State Must Prove

1. The defendant attempted to commit the crime of (name of crime).

2. The death of (name of victim) was caused by the attempt to commit (name of

crime).2

Determining Whether the Defendant Attempted to Commit (name of crime)

The first element of felony murder requires that the defendant attempted to commit the

crime of (name of crime).

3

The crime of attempted (name of crime), as defined in § 939.32 and § of the

Criminal Code of Wisconsin, is committed by one who, with intent to commit (name of

crime), does acts toward the commission of that crime which demonstrate unequivocally,

under all of the circumstances, that he or she had formed that intent and would commit the

crime except for the intervention of another person or some other extraneous factor.4

First, consider whether the defendant intended to commit (name of crime).

(Name of crime) is committed by one who

LIST THE ELEMENTS OF THE INTENDED CRIME AS IDENTIFIED IN THE

UNIFORM INSTRUCTION. ADD DEFINITIONS FROM THE UNIFORM

INSTRUCTIONS AS NECESSARY.5

The crime involved in this case, however, is not (name of crime) as defined, but an

attempt to commit the crime of (name of crime).

Next, consider whether the defendant did acts toward the commission of the crime of

(name of crime) that demonstrate unequivocally, under all of the circumstances, that the

defendant intended to and would have committed the crime of (name of crime) except for

the intervention of another person or some other extraneous factor.

Meaning of “Unequivocally”

“Unequivocally” means that no other inference or conclusion can reasonably and fairly

be drawn from the defendant’s acts under the circumstances.

Meaning of “Another Person”

“Another person” means anyone but the defendant and may include the intended

victim.

Meaning of “Extraneous Factor”

An “extraneous factor” is something outside the knowledge of the defendant or outside

the defendant’s control.

Deciding About Intent

You cannot look into a person’s mind to find intent. Intent 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.

Determining Whether Death was Caused by the Attempt to

Commit of (name of crime)

The second element of felony murder requires that the death of (name of victim) was

caused by the attempt to commit (name of crime).

The Meaning of “Cause”

“Cause” means that the attempt to commit (name of crime) was a substantial factor in

producing the death.6

ADD THE FOLLOWING IN CASES INVOLVING THE IMMEDIATE

FLIGHT FROM AN ATTEMPTED FELONY.7

[The phrase “the attempt to commit” the crime includes the period of immediate flight from

that crime.]

Jury’s Decision on Felony Murder

If you are satisfied beyond a reasonable doubt that the defendant attempted to commit

the crime of (name of crime) and that the death of (name of victim) was caused by the

attempt to commit (name of crime), you should find the defendant guilty of felony murder.

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