Wisconsin § 940.06 - Second-degree reckless homicide.

§ 940.06. Second-degree reckless homicide.

940.06(1) (1) Whoever recklessly causes the death of another human being is guilty of a Class D felony. 940.06(2) (2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony. 940.06 History History: 1987 a. 399 ; 1997 a. 295 ; 2001 a. 109 . 940.06 Note Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S] 940.06 Annotation Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392 , 576 N.W.2d 912 (1998), 96-2830 . 940.06 Annotation The 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 . 940.06 Annotation The second-degree reckless homicide statute requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor’s subjective awareness of that risk. The circuit court’s refusal to instruct the jury about the effect of the parents’ sincere belief in prayer treatment for their child on the subjective awareness element of second-degree reckless homicide did not undermine the parents’ ability to defend themselves. The second-degree reckless homicide statute does not require that the actor be subjectively aware that the actor’s conduct is a cause of the death of the actor’s child. The statute and the jury instructions require only that the actor be subjectively aware that the actor’s conduct created the unreasonable and substantial risk of death or great bodily harm. State v. Neumann, 2013 WI 58 , 348 Wis. 2d 455 , 832 N.W.2d 560 , 11-1044 . 940.06 Annotation The only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life” is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim’s life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61 , 397 Wis. 2d 633 , 961 N.W.2d 18 , 18-2318 . 940.06 Annotation The Importance of Clarity in the Law of Homicide: The Wisconsin Revision. Dickey, Schultz, & Fullin. 1989 WLR 1323.