B— v. State
166 N.W. 32
Wis.
1918
Check Treatment
Wirrsnow, O. J.

It appears very clearly from the opinion, filed by the trial judge that much doubt existed in his mind as to whether the verdict was sustained by the evidence. He-thought that there was a wide divergence between the doctrine of the Brown Case (127 Wis. 193, 106 N. W. 536) and the doctrine of the McLain Case (159 Wis. 204, 149 N. W. 771), and that the verdict was wrong if the first named case-was to be followed, but could be sustained if the other case-was the standard. In this dilemma he concluded to overrule the motion on the strength of the McLain Case and recommended and encouraged the transfer of thе case to this court' ‍​​​​‌​​​‌‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​‌‌​‍in order that the question might be authoritatively decided. *533before the sentence was carried into execution. We take it that this is what the trial judge meant when he said that if the verdict is to be set aside the responsibility therefor should be shared by this court. In the strict and accurate sense no one can share the responsibility of the trial judge on a motion for a new trial. The defendant has the right to have “the solemn opinion of the judge who tried the cаuse, after a careful hearing of all that may be alleged against its justice, that it [the verdict] ought to stand.” Ohms v. State, 49 Wis. 415, 5 N. W. 827; Lonergan v. State, 111 Wis. 453, 87 N. W. 455. The consсience of the trial judge must be satisfied with the verdict. In each case it is an individual problem presented to but one сonscience, for every conscience must meet its individual problems alone. While we do not consider there is so great a divergence between the two cases named as the trial judge thought, it may be readily admitted that therе is some ground for his difficulty. The abstract principle held in each case is the same, to1 wit, that in order to constitute thе crime of rape there must be not only lack of consent, but the utmost resistance by all means within the woman’s power.

It cannot be denied, however, that there is a considerable difference between the tone of the two оpinions and the impression ‍​​​​‌​​​‌‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​‌‌​‍which they leave upon the mind, and this was recognized when the later opinion was written. The imрression left by the Brown Case unquestionably is that, unless the woman is beaten into iinconsciousness or put into a state of mortal fear by threats, she must make resistance approaching the superhuman in its ferocity and effectiveness before thе crime of rape can'be committed. In the McLain Case there was an endeavor to malm it clear that while the utmost resistance was required in all cases, this requirement was relative, not positive, and that what constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament оf the victim, the relations of the parties, her state of health, her physical strength, *534ber age, ber experience, ber courage, ber nervous condition at tbe time, and perhaps ‍​​​​‌​​​‌‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​‌‌​‍other circumstances naturally affecting bеr powers of resistance. So reading tbe McLain Case, we do not think it can be said that there is any direct conflict between its dоctrine and tbe doctrine of tbe Brown Case, but simply that it supplements tbe Brown Case and removes tbe erroneous idea which is likely to be gathered therefrom, namely, that tbe measure of resistance required is absolute and fixed in all cases and must be so great that, while it fails to defеat tbe purpose of the ravisher, tbe failure is only by the narrowest possible margin.

Applying these principles to tbe testimony in tbe present case, we are obliged to say, after a diligent examination of tbe evidence, that in our judgment tbe crime of rape is not proven, on account of tbe grave doubt that remains as to whether tbe prоsecutrix made that resistance which ‍​​​​‌​​​‌‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​‌‌​‍the law requires in view of all tbe surrounding circumstances. Justices Siebeciceе; and Eschweilbe are of opinion that tbe .question whether intercourse was bad at all is so gravely in doubt that tbe judgment should be reversed on that ground also, but tbe court does not so bold.

We shall not rehearse tbe evidence in this opiniоn; it has been quite fully stated in tbe statement of tbe case. It must be sufficient to say here that it is lacking in so many of tbe elemеnts which almost invariably attend this detestable crime that there must always remain a very robust doubt as to the fact of guilt.

Tbe prosecutrix was apparently a normal girl of average health and strength, over seventeen years of age. She was not deceived by false pretenses that she was being treated medically nor made afraid by threats of violence; she was suddenly , assaulted (according to her own story) in a way that could not be misunderstood; she made no оutcry, though 'the place of assault overlooked a much frequented public street, and this was not from inability to speak, for she says *535that she said to defendant while he was on her, “Yon hurt me;” she claims to have fought, but there was absolutely nо evidence of any struggle left on either party or on their clothing; there were no stains or marks on clothing or person; the hymen was nnruptured; there was not the slightest mark of violence on her legs nor private parts, nor was there аny redness or inflammation visible anywhere; she admits that within an hour afterwards she said that the defendant ‍​​​​‌​​​‌‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​‌‌​‍did not hurt her; according to the testimony of two disinterested experts, who examined her about eight months later, the hymen was then normal and absolutеly intact and the opening was such that it would have been impossible for forcible intercourse to have taken place by a man with normal parts without rupturing it; the violent struggle which she claims took place was on a physician’s tаble twenty-two inches wide, mounted on rollers on a smooth floor.

There are other facts in evidence which might be еnlarged upon tending to throw the gravest doubt upon the story of the prosecutrix as to her resistance, but it is not deemed necessary to enlarge upon them here.

A number of detail errors are alleged, but the case was tried with extreme fairness and care on the part of the trial judge, and we find no rulings that can be considered preju-dicially erroneous or that require treatment.

By the Court. — Judgment reversed, and a new trial ordered.