Wis JI-Criminal 1052

Statutory Definition of the Crime

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 intent to

kill that person or another.

You must also consider whether the defendant' conduct was privileged under the law of

self-defense.

Self-Defense

The Criminal Code of Wisconsin provides that a person is privileged to intentionally use

force against another under the following circumstances:

• force is used for the purpose of preventing or terminating what the person reasonably

believes to be an unlawful interference with (his) (her) person by the other person; and,

• the person uses only the amount of force that (he) (she) reasonably believes is

necessary to prevent or terminate the interference; and,

• the person may not intentionally use force which is intended or likely to cause death

unless (he) (she) reasonably believes that such force is necessary to prevent imminent

death or great bodily harm to (himself) (herself). 2

As applied to this case, the effect of the law of self-defense is that if the defendant

reasonably believed the force used was necessary to prevent imminent death or great bodily

harm to (himself) (herself), the defendant is not guilty of second degree intentional homicide.

State' 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 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. 3

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

being). 4

"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

3. The defendant did not reasonably believe that (he) (she) was preventing or

terminating an unlawful interference with (his) (her) person or did not reasonably

believe that the force used was necessary prevent imminent death or great bodily

harm to (himself) (herself). 6

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

circumstances in this case bearing upon intent. 7

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' 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.

Reasonable Belief That The Force Used Was Necessary

The third element of second degree intentional homicide requires that the defendant did

not reasonably believe that (he) (she) was preventing or terminating an unlawful interference

with (his) (her) person or did not reasonably believe the force used was necessary to prevent

imminent death or great bodily harm to (himself) (herself). This requires that the State prove

any one of the following: 8

1) that a reasonable person in the circumstances of the defendant would not have

believed that (he) (she) was preventing or terminating an unlawful interference with (his)

(her) person; or

2) that a reasonable person in the circumstances of the defendant would not have

believed (he) (she) was in danger of imminent death or great bodily harm; or

3) that a reasonable person in the circumstances of the defendant would not have

believed that the amount of force used was necessary to prevent imminent death or great

bodily harm to (himself) (herself).

The reasonableness of the defendant's belief must be determined from the standpoint of

the defendant at the time of (his) (her) acts and not from the viewpoint of the jury now. The

standard is what a person of ordinary intelligence and prudence would have believed in the

position of the defendant under the circumstances existing at the time of the alleged offense.

Jury's Decision

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

(name of victim) with the intent to kill and did not reasonably believe that (he) (she) was

preventing or terminating an unlawful interference with (his) (her) person or did not

reasonably believe that the force used was necessary prevent imminent death or great bodily

harm to (himself) (herself), you should find the defendant guilty of second degree intentional

homicide.

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