Wisconsin Jury Instruction Criminal (WJIC)

Volume I


860 Privilege: Defense of Another’s Property — § 939.49(2)


Defense of Another’s Property

Defense of the property of another is an issue in this case. The law of defense of property allows the defendant to threaten or intentionally use force to defend the property of another only if:

· the defendant believed that there was an unlawful interference with the property of (name of third person) ; and,

· the defendant believed that the property belonged to (a member of the defendant’s immediate family or household) (a person whose property the defendant has a legal duty to protect) (a merchant who employs the defendant) (a library that employs the defendant); and,

· the defendant believed that (name of third person) was entitled to use or threaten to use force to defend his property; and,

· the defendant believed that the amount of force used or threatened was necessary for the protection of (name of third person) ‘s property; and,

· the defendant’s beliefs were reasonable.

The law of defense of property does not allow a person to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of property.

Determining Whether Beliefs Were Reasonable

A belief may be reasonable even though mistaken. In determining whether the beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now.

State’s Burden of Proof

The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant was not acting lawfully in defense of the property of another

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all ____ elements of _________ have been proved and that the defendant did not act lawfully in defense of property of another, you should find the defendant guilty.

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

[Checked December 2017]