Wisconsin Statutes
Wis. Stat. § 940.05 (2026)
Second-degree intentional homicide
✓ current as of July 2026
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940.05(1)(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
940.05(1)(a)(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(1)(b)(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2)(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
940.05(2g)(2g) 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 B felony if:
940.05(2g)(a)(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(2g)(b)(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2h)(2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused 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.
940.05(3)(3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.
940.05 NoteJudicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
940.05 NoteAdequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state’s inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
940.05 NoteWhen first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury’s finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]
940.05 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).
940.05 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.
940.05 AnnotationThe Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.
Notes of Decisions
Cited in 75
cases (10 in the last 5 years), 1963–2023 · leading case: State v. Head, 2002 WI 99 (Wis. 2002).
State v. Head, 2002 WI 99 (Wis. 2002). “Wis. Stat. § 940.05 (1985-86). Manslaughter was a Class C felony punishable by imprisonment not to exceed 10 years.”
State v. Felton, 329 N.W.2d 161 (Wis. 1983). “At the postconviction hearing, the trial attorney admitted that he was unaware of sec. 940.05(1), Stats., which provides: "Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: "(1) Without intent to kill and…”
State v. Seifert, 454 N.W.2d 346 (Wis. 1990). “Section 940.05, Stats., which sets forth the crime of imperfect self-defense manslaughter, provides as follows: Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: *63 .”
State v. Watkins, 2002 WI 101 (Wis. 2002). “On November 12, 1998, the circuit court issued an oral decision finding Watkins guilty of second-degree intentional homicide, pursuant to Wis. Stat. § 940.05 . The court stated: [T]he State has proven the charge of second degree intentional homicide where privilege of…”
State v. Camacho, 501 N.W.2d 380 (Wis. 1993). “We examine the language of sec. 940.05, Stats. 1985-86. [3] Section 940.”
State v. Lee, 321 N.W.2d 108 (Wis. 1982). “The purpose of sec. 940.05(1), Stats., is clearly to punish homicides less severely if they result from the heat of passion.”
State v. Kleser, 2010 WI 88 (Wis. 2010). “These are affirmative defenses "which mitigate the offense to 2nd-degree intentional homicide under § 940.05." Wis. Stat. § 940.01 (2). Paragraph (am) also applies to juveniles who allegedly commit a violation of Wis.”
State v. Mendoza, 258 N.W.2d 260 (Wis. 1977). “BEILFUSS) finds acquittal for having acted in self-defense not appropriate, but manslaughtercausing the death of another by the unreasonable exercise of the privilege of self-defense (sec. 940.05, Stats.) an optional verdict a jury might return.”
State v. Sarabia, 348 N.W.2d 527 (Wis. 1984). “1981-82, requires "an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another. . . ." [4] Wis. J.I.Cr.”
State v. Oliver, 321 N.W.2d 119 (Wis. 1982). “" [3] Sec. 940.05, Stats., states: "940.05 Manslaughter.”
State v. Felix, 2012 WI 36 (Wis. 2012). “Felix pleaded guilty to the charge in the amended information of second-degree intentional homicide contrary to Wis. Stat. § 940.05 (l)(b). 16 Felix was sentenced to 28 years of initial confinement and 20 years on extended supervision.”
State v. Jones, 532 N.W.2d 79 (Wis. 1995). “In Camacho, this Court held that imperfect self-defense manslaughter under sec. 940.05, Stats. 1985-86 [11] (now second degree intentional homicide under sec.”
— Wis. Stat. § 940.05(1) — 23 cases
State v. Lee, 321 N.W.2d 108 (Wis. 1982). “The purpose of sec. 940.05(1), Stats., is clearly to punish homicides less severely if they result from the heat of passion.”
State v. Felton, 329 N.W.2d 161 (Wis. 1983). “At the postconviction hearing, the trial attorney admitted that he was unaware of sec. 940.05(1), Stats., which provides: "Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: "(1) Without intent to kill and…”
State v. Oliver, 321 N.W.2d 119 (Wis. 1982). “" [3] Sec. 940.05, Stats., states: "940.05 Manslaughter.”
State v. Jenkins, 483 N.W.2d 262 (Wis. Ct. App. 1992).
State v. Michels, 414 N.W.2d 311 (Wis. Ct. App. 1987).
— Wis. Stat. § 940.05(1)(a) — 2 cases
State v. Martinson, 927 N.W.2d 153 (Wis. Ct. App. 2019).
State v. Demetrius Q. Gordon (Wis. Ct. App. 2023).
— Wis. Stat. § 940.05(2) — 15 cases
State v. Seifert, 454 N.W.2d 346 (Wis. 1990). “Section 940.05, Stats., which sets forth the crime of imperfect self-defense manslaughter, provides as follows: Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: *63 .”
State v. Sarabia, 348 N.W.2d 527 (Wis. 1984). “1981-82, requires "an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another. . . ." [4] Wis. J.I.Cr.”
State v. Felton, 329 N.W.2d 161 (Wis. 1983). “At the postconviction hearing, the trial attorney admitted that he was unaware of sec. 940.05(1), Stats., which provides: "Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony: "(1) Without intent to kill and…”
State v. Faulkner, 483 A.2d 759 (Md. 1984).
State v. Echols, 449 N.W.2d 320 (Wis. Ct. App. 1989).
— Wis. Stat. § 940.05(2g)(b) — 1 case
State v. Peterson, 2001 WI App 220 (Wis. Ct. App. 2001).
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