(dissenting). I respectfully dissent from the majority conclusion that present Wisconsin law allows a dog owner to be convicted of a felony if the dog injures a person. It is the legislature's prerogative to create a statutory crime. Not only does Bodoh stand convicted of a crime unknown to Wisconsin law, but public policy is not served by the application of a criminal negligence statute, § 940.24, Stats., to Wisconsin dog owners where the legislature has provided penal*117ties and a civil remedy for such acts under § 174.02, Stats.1
There are literally thousands of dogs and dog owners in the state.2 Under the majority analysis, each of these dogs is considered a "dangerous weapon" and § 940.24, Stats., authorizes the issuance of a felony criminal complaint against any dog owner whose dog is running free without the owner’s knowledge and causes bodily harm to a human being. Contrary to the majority holding, the State is not required to establish or prove that the dog was a guard dog, a watchdog, a dog used for protection purposes or a dog of a certain *118breed not properly trained in order to file a § 940.24 complaint. Proof of the first element of "Injury by negligent handling of [a] dangerous weapon" merely requires that the defendant operated or handled "any ... device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm." Section 939.22(10), Stats.; see Wis J I — Criminal 1260. Under the majority's interpretation of Sinks, that case has determined that a dog satisfies this definition. Sinks did not require proof as to the training or type of dog; instead, the Sinks court noted that "it is ... the nature of the act that determines whether [the dog] is a dangerous weapon." State v. Sinks, 168 Wis. 2d 245, 254, 483 N.W.2d 286, 290 (Ct. App. 1992); see majority op. at 107. As conceded in the first sentence of the majority opinion, "[t]his is a dog bite case." It then becomes clear that this is a dog bite case that exposes a dog owner to a felony conviction for the physical pain or injury caused to the person bitten. Under the majority holding, any dog bite circumstances that present a risk of great bodily harm to the person bitten are criminally actionable against the owner.3
My colleagues are correct that dog owners are already criminally liable under § 940.07, Stats., for fatal injuries due to a dog attack if the owner knows of the dog's vicious propensities. However, their analysis of this section does not go far enough. Section 940.07 requires more than the owner's knowledge of the dog's *119dangerous propensities for liability to attach. It authorizes a prosecution only if the dog owner "knowing the vicious propensities of [the, dog] intentionally allows it to go at large or keeps it without ordinary care, if [the dog], while so at large or not confined, kills any human being." Id. (emphasis added.) Additionally, this section places a duty upon the deceased victim to have "taken all the precautions which the circumstances may permit to avoid [the dog]." Id. This legislative requirement is not addressed by the majority when it concludes that § 940.24, Stats., extends the State's authority to criminally charge the owners of dogs that bite and cause injury.
Section 940.07, Stats., which addresses an owner's criminal liability for a dog which causes fatal injuries, precludes by its very existence the criminal prosecution of dog owners for dogs causing injury to another. Here, if Bodoh's dogs had caused death rather than bodily injury, the facts of this case would not have supported a criminal prosecution. To put this court's imprimatur on criminal prosecutions for negligent injury by a dog where the legislature has precluded criminal prosecution for a homicide under the same facts is absurd.
Sinks, which was relied upon by the trial court in its determination that a § 940.24, STATS., cause of action exists under the Bodoh facts, is not a criminal negligence case. While the Sinks court stated without qualification that "a dog can be a dangerous weapon," Sinks, 168 Wis. 2d at 254, 483 N.W.2d at 290, it did not hold that a dog is a dangerous weapon. In Sinks, the defendant was charged with first-degree sexual assault, which requires that the assault be committed by "use or threat of use of a dangerous weapon." See § 940.225(l)(b), Stats, (emphasis added). Thus, a *120showing that Sinks actively used and controlled his dog was a necessary element of the crime. Bodoh's argument that Sinks is distinguishable from his case has substantial merit. Sinks does not support the charges against Bodoh; it is inapposite.
Finally, and importantly, when the legislature created § 940.07, Stats., it could have created a companion negligent injury by animal statute. It did not. This court has no right or authority to surmise that the legislature would have created a statute inconsistent with the statutory scheme of §§ 940.07 and 940.08, STATS., in which criminal culpability for homicide due to the knowing and intentional handling of animals (dogs) is distinguished from the culpability required for the negligent handling of inanimate objects (guns, knives, cars, etc.). An owner's criminal culpability for an injury caused by a dog owner's negligence would by logical extension include the proofs and protections provided for in § 940.07.
Where the legislature has created a separate statute for homicide resulting from negligent control of a vicious animal, see § 940.07, Stats., but did not create a separate negligent injury statute, it is presumptuous for this court to fill a perceived legislative void. Because I conclude that the majority opinion affirms a felony conviction for a crime unknown in Wisconsin law, and because I discern that existing legislative intent is that animal injury matters be addressed under § 174.02, Stats., I dissent.
Section 174.02(1), Stats., places liability on owners for "damages caused by the dog injuring or causing injury to a person, domestic animal or property." It also contains a penalty section and a provision permitting the destruction of a dog if the court finds: (1) the dog caused injury to a person or domestic animal "on 2 separate occasions off the owner's property, without reasonable cause," and (2) owner scienter. See § 174.02(3). This statutory section is included in ch. 174, STATS., which pertains entirely to the licensing and regulation of dogs. The majority opinion renders the plain language of § 174.02 superfluous, while concluding that the State may impose criminal liability on dog owners under a statutory section that refers only to criminal negligence in the handling of a "dangerous weapon."
In 1997 there were 27,224 licensed dogs in Milwaukee County and 19,667 licensed dogs in Waukesha County according to the respective county clerks' offices — a total of 46,891 licensed dogs in those two counties. On January 1, 1996, the human population of these same counties was estimated to be 1,297,980 people, or 25.2% of Wisconsin's total estimated population of 5,142,999. See STATE OF WISCONSIN BLUE BOOK, at 734, 740 & 762 (1997-98). Extrapolating these numbers suggests that there is a population of approximately 187,000 licensed dogs in Wisconsin, each one exposing its owner to a potential felony prosecution if it gets loose and bites someone.
The majority attempts to narrow its holding when it states that there must be evidence that Bodoh "intended his Rottweilers to be dangerous weapons." Majority op. at 110. Yet in the same section, the majority recognizes that "[t]he jury could also find that Rottweilers will not attack unless improperly trained." Majority op. at 112.