Wisconsin Statutes
Wis. Stat. § 940.01 (2026)
First-degree intentional homicide
✓ current as of July 2026
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940.01(1)(a)(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.
940.01(1)(b)(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.
940.01(2)(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:
940.01(2)(a)(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
940.01(2)(b)(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.
940.01(2)(c)(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.
940.01(2)(d)(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
940.01(3)(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 NoteJudicial 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 NoteThe 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. (2) (b) are reasonable. Section 939.48.
940.01 AnnotationThe prosecution is required to prove only that the defendant’s acts were a substantial factor in the victim’s death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
940.01 AnnotationThe trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense “has been placed in issue” before submitting the issue to the jury. Shawn B.N. v. State, 173 Wis. 2d 343, 497 N.W.2d 141 (Ct. App. 1992).
940.01 AnnotationImperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with the defendant’s person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
940.01 AnnotationSub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z., 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
940.01 AnnotationA defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that the defendant reasonably believed that the defendant was preventing or terminating an unlawful interference with the defendant’s person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm. A defendant seeking a jury instruction on unnecessary defensive force under sub. (2) (b) to a charge of first-degree intentional homicide is not required to satisfy the objective threshold. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
940.01 AnnotationA defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim’s violent character and past acts of violence to show a satisfactory factual basis that the defendant actually believed the defendant was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend himself or herself, even if both beliefs were unreasonable. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
940.01 AnnotationA privilege for excusable homicide by accident or misfortune is incorporated in s. 939.45 (6). Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
940.01 AnnotationA defendant may demonstrate that the defendant was acting lawfully, a necessary element of an accident defense, by showing that the defendant was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what the person reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
940.01 AnnotationThe common law “year-and-a-day rule” that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.01 AnnotationAn actor causes death if the actor’s conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional, or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant’s acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.01 AnnotationUnder the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim’s life support was “wrongful” under Wisconsin law, that wrongful act would not break the chain of causation between the defendant’s actions and victim’s subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.01 AnnotationThe defense under s. 939.46 (1m) is a complete defense to first-degree intentional homicide. State v. Kizer, 2022 WI 58, 403 Wis. 2d 142, 976 N.W.2d 356, 20-0192.
940.01 AnnotationBarring psychiatric or psychological opinion testimony on the defendant’s capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F.2d 384 (1990).
940.01 AnnotationThe Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
940.01 AnnotationState v. Camacho: The Judicial Creation of an Objective Element to Wisconsin’s Law of Imperfect Self-Defense Homicide. Lieser. 1995 WLR 741.
Notes of Decisions
Cited in 365
cases (51 in the last 5 years), 1958–2026 · leading case: State v. Head, 2002 WI 99 (Wis. 2002).
State v. Head, 2002 WI 99 (Wis. 2002). “Debra Head was charged with first-degree intentional homicide, pursuant to Wis. Stat. § 940.01 (1997-1998). [4] She admitted that she had killed Harold, but claimed that she did so in self-defense.”
State v. Lo, 2003 WI 107 (Wis. 2003). “" Subsection (2) then provides: (2) Mitigating Circumstances.”
State v. Kleser, 2010 WI 88 (Wis. 2010). “Courts of criminal jurisdiction have exclusive original jurisdiction over juveniles alleged to have committed a violation of Wis. Stat. § 940.01 , first-degree intentional homicide, on or after the juvenile's tenth birthday.”
State v. Watkins, 2002 WI 101 (Wis. 2002). “The State later amended the complaint, charging Watkins with first-degree intentional homicide, while armed, pursuant to Wis. Stat. §§ 940.01 (1) and 939.63. *278 ¶ 20.”
State v. Jenkins, 483 N.W.2d 262 (Wis. Ct. App. 1992). “Alvin Jenkins appeals his conviction for first-degree murder, in violation of section 940.01, Stats. (1985-86). [1] He raises two issues.”
State v. Weeks, 477 N.W.2d 642 (Wis. Ct. App. 1991). “, is a lesser-included offense of the revised First-Degree Intentional Homicide statute, sec. 940.01, Stats. We agree. The notes to the adopted Senate Bill found in the introductory comments on Wisconsin's new homicide law explicitly set forth the proposition advanced by the…”
State v. Raymond L. Nieves, 2017 WI 69 (Wis. 2017). “2 See Wis. Stat. § 940.01 (1)(a) (2009-10); § 939.”
State v. Jeffrey P. Lepsch, 2017 WI 27 (Wis. 2017). “hese circumstances; (3) Lepsch's right to be present at a critical stage of his proceedings, right to a public trial, and right to a jury properly sworn to be impartial were violated because the La Crosse County Clerk of Courts administered the oath to the prospective jurors in…”
State v. Weed, 2003 WI 85 (Wis. 2003). “The State of Wisconsin (State) charged Weed with first-degree intentional homicide in violation of Wis. Stat. § 940.01 (1) (1997-98). [2] Weed was found guilty by a jury and was sentenced to life in prison, plus two years for using a dangerous weapon.”
State v. Curtis L. Jackson, 2014 WI 4 (Wis. 2014). “¶4 Jackson was charged with first-degree intentional homicide by use of a dangerous weapon, contrary to Wis. Stat. §§ 940.01 (1)(a), 939.50(3)(a), and 939.”
State v. Camacho, 501 N.W.2d 380 (Wis. 1993). “The 1985 statute governing imperfect self-defense manslaughter, sec. 940.01, Stats., provides that anyone convicted under the statute is guilty of a Class C felony.”
State v. Dale R. Neumann, 2013 WI 58 (Wis. 2013). “" Wis. Stat. § 940.01 (1)(a) (emphasis added).”
Wis. Stat. § 940.01(1): 67 cases
State v. Weeks, 477 N.W.2d 642 (Wis. Ct. App. 1991). “, is a lesser-included offense of the revised First-Degree Intentional Homicide statute, sec. 940.01, Stats. We agree. The notes to the adopted Senate Bill found in the introductory comments on Wisconsin's new homicide law explicitly set forth the proposition advanced by the…”
State v. Head, 2002 WI 99 (Wis. 2002). “Debra Head was charged with first-degree intentional homicide, pursuant to Wis. Stat. § 940.01 (1997-1998). [4] She admitted that she had killed Harold, but claimed that she did so in self-defense.”
State v. Kleser, 2010 WI 88 (Wis. 2010). “Courts of criminal jurisdiction have exclusive original jurisdiction over juveniles alleged to have committed a violation of Wis. Stat. § 940.01 , first-degree intentional homicide, on or after the juvenile's tenth birthday.”
State v. Johnson, 503 N.W.2d 575 (Wis. Ct. App. 1993).
State v. Weed, 2003 WI 85 (Wis. 2003). “The State of Wisconsin (State) charged Weed with first-degree intentional homicide in violation of Wis. Stat. § 940.01 (1) (1997-98). [2] Weed was found guilty by a jury and was sentenced to life in prison, plus two years for using a dangerous weapon.”
Wis. Stat. § 940.01(1)(A): 1 case
Vasquez v. Kingston, 422 F. Supp. 2d 1006 (E.D. Wis. 2006).
Wis. Stat. § 940.01(1)(a): 35 cases
State v. Kleser, 2010 WI 88 (Wis. 2010). “Courts of criminal jurisdiction have exclusive original jurisdiction over juveniles alleged to have committed a violation of Wis. Stat. § 940.01 , first-degree intentional homicide, on or after the juvenile's tenth birthday.”
State v. Dale R. Neumann, 2013 WI 58 (Wis. 2013). “" Wis. Stat. § 940.01 (1)(a) (emphasis added).”
State v. Nicolas Subdiaz-Osorio, 2014 WI 87 (Wis. 2014).
State v. Richard Michael Arrington, 2021 WI App 32 (Wis. Ct. App. 2021).
State v. Lapiate P. Boone (Wis. Ct. App. 2025).
Wis. Stat. § 940.01(1)(b): 1 case
State v. Deborah J.Z., 596 N.W.2d 490 (Wis. Ct. App. 1999).
Wis. Stat. § 940.01(2): 17 cases
State v. Head, 2002 WI 99 (Wis. 2002). “Debra Head was charged with first-degree intentional homicide, pursuant to Wis. Stat. § 940.01 (1997-1998). [4] She admitted that she had killed Harold, but claimed that she did so in self-defense.”
State v. Jenkins, 483 N.W.2d 262 (Wis. Ct. App. 1992). “Alvin Jenkins appeals his conviction for first-degree murder, in violation of section 940.01, Stats. (1985-86). [1] He raises two issues.”
State v. Chrystul D. Kizer, 2021 WI App 46 (Wis. Ct. App. 2021).
In Interest of Shawn BN, 497 N.W.2d 141 (Wis. Ct. App. 1992).
State v. Flattum, 361 N.W.2d 705 (Wis. 1985).
Wis. Stat. § 940.01(2)(B): 1 case
Yeoman v. Pollard, 875 F.3d 832 (7th Cir. 2017).
Wis. Stat. § 940.01(2)(a): 5 cases
State v. Chrystul D. Kizer, 2021 WI App 46 (Wis. Ct. App. 2021).
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022).
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022).
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019).
State v. Grady Cornell Carson (Wis. Ct. App. 2020).
Wis. Stat. § 940.01(2)(b): 25 cases
State v. Head, 2002 WI 99 (Wis. 2002). “Debra Head was charged with first-degree intentional homicide, pursuant to Wis. Stat. § 940.01 (1997-1998). [4] She admitted that she had killed Harold, but claimed that she did so in self-defense.”
State v. Jones, 532 N.W.2d 79 (Wis. 1995).
State v. Seifert, 454 N.W.2d 346 (Wis. 1990).
State v. Lo, 2003 WI 107 (Wis. 2003). “" Subsection (2) then provides: (2) Mitigating Circumstances.”
State v. Watkins, 2002 WI 101 (Wis. 2002). “The State later amended the complaint, charging Watkins with first-degree intentional homicide, while armed, pursuant to Wis. Stat. §§ 940.01 (1) and 939.63. *278 ¶ 20.”
Wis. Stat. § 940.01(2)(d): 2 cases
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022).
State v. Chrystul D. Kizer, 2022 WI 58 (Wis. 2022).
Wis. Stat. § 940.01(2m)(b): 1 case
State v. Lo, 2003 WI 107 (Wis. 2003). “" Subsection (2) then provides: (2) Mitigating Circumstances.”
Wis. Stat. § 940.01(3): 2 cases
In Interest of Shawn BN, 497 N.W.2d 141 (Wis. Ct. App. 1992).
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019).
Wis. Stat. § 940.01(a): 1 case
State v. Amy M. Van Wagner (Wis. Ct. App. 2024).
Wis. Stat. § 940.01(l)(a): 8 cases
Oscar Thomas v. Marc Clements, 789 F.3d 760 (7th Cir. 2015).
State v. Dale R. Neumann, 2013 WI 58 (Wis. 2013). “" Wis. Stat. § 940.01 (1)(a) (emphasis added).”
State v. Deborah J.Z., 596 N.W.2d 490 (Wis. Ct. App. 1999).
State v. Benton, 2001 WI App 81 (Wis. Ct. App. 2001).
State v. Barreau, 2002 WI App 198 (Wis. Ct. App. 2002).
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