Devoy v. State

| Wis. | May 10, 1904

Siebecker, J.

The essential ingredients constituting the crime of rape are so definitely established by the adjudications of this state that a reference to former decisions will be sufficient to show the nature and character of the offense. The terms of the statute defining the offense, in their legal equivalent, mean that if any person has sexual intercourse with a female over the designated age by force, without her consent and against her will, he shall be guilty of this offense. In Connors v. State, 47 Wis. 523" court="Wis." date_filed="1879-08-15" href="https://app.midpage.ai/document/conners-v-state-6602955?utm_source=webapp" opinion_id="6602955">47 Wis. 523, 2 N. W. 1143, it is stated:

“Voluntary submission by the woman while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of rape.” “If the carnal knowledge was with the voluntary consent of the woman, no matter how tardily given, or how much force had been theretofore employed, it is no rape.”

The ingredient which gives the offense its atrocious character is the violation of the woman’s person under circumstances while exerting the utmost power in protection of herself. Utmost reluctance must be shown, and it must also appear that she availed herself of every reasonable opportunity to make the utmost resistance in repelling the assailant and preventing him from accomplishing his purpose. Under the circumstances of such an attack, a passive demeanor on her part is not sufficient to show utmost resistance, if she was sufficiently possessed of her mental faculties to apprehend her danger and to control her physical powers in her defense.

There is nothing disclosed by the evidence which takes this case out of the class of cases wherein the prosecutrix should have continued her resistance and dissent to the last. It fails to show that her will was overcome by threats or fear, or that she was not in possession of all her mental faculties, when the outrage is alleged to have been committed. An exhaustive and observant reading of the evidence in the case shows the following facts:

The prosecutrix admitted that she had never met the accused, James Loughlin, before this evening; that she met him at the ball at a late hour, and accepted his invitation to accompany him alone for a walk in the streets of the village; that she became apprised of his purpose within a few minutes after leaving the hall; that she was at this time in close proximity to occupied buildings, and within such a distance of Lauer’s Hall that a call for help would in all probability have reached the persons whom they had passed on the sidewalk, near the entrance of the hall, a few minutes before. Yet she was absolutely, silent, and gives no other explanation than that Loughlin told her to keep still. The evidence also fails to show that she made efforts to escape from him in walking to and after stopping near the railway tracks, where she claims he threw her to the ground and held her down until Devoy arrived. She made no outcry and spoke no word of protest. Her silence is confirmed by the evidence of witnesses who were upon the street at such a distance that a cry of alarm could have been heard by them. Her whole testimony at this time is devoid of anything showing that she used her capacities to resist such an attack, when her powers to act were neither stupefied nor seriously interfered with through force or threats by the assailant.

The gravamen of the offense is said to be shown by the events immediately following the compromising situation' just referred to, after Devoy’s appearance upon the scene. She testifies that Devoy sat down beside them and held his hand over her month while Loughlin had intercourse with her, that no word was spoken, and that she tried to push them off with her hands. The statement by her that, immediately after Devoy's arrival, Loughlin removed the garment from next her body, before Devoy put his hand over her mouth, and that she made no outcry then, nor resisted these advances in any way, except to push with her hands, is significant as showing a want of the utmost resistance on her part, and a failure to call for aid under circumstances so alarming to-her safety. She further testifies that, after Devoy left them at this place, she walked with Loughlin on the street, going arm in arm as before, until they arrived at the lawn of a dwelling house near a church; that while on the lawn, a few foot from the dwelling house and about six feet from the sidewalk, Loughlin again pushed her to the ground, and that De-voy then appeared again; and that they committed another rape upon her. The surroundings of this occasion show that an ordinary outcry would have attracted the attention of persons in the immediate vicinity, but she testifies that she gave no alarm, though she had opportunity to do so; nor does she offer any explanation why she made no attempt to escape from Loughlin while on the streets in going to this place, or after they were on the lawn and before Devoy appeared. It is undisputed that two of the witnesses called upon the trial passed near by, over the sidewalk, while she was on the lawn with both persons, and that she heard them pass and go into the adjoining yard, but made no effort to attract their attention. In explanation of this silence, she testifies that Loughlin told her that if she did not keep still she knew what he would do to her. The two witnesses testify that they observed the persons lying on the lawn in a compromising situation; that they went into the adjoining yard to get their buggy, and while there noticed these persons get up; and that the prose-cutrix arose, stepped near the building alone, and seemed to arrange her wearing apparel, and then went away with one of the men. They testify that nothing occurred indicating a struggle, and that no alarm of danger or call for assistance was given. Her testimony, in effect, corroborates the fact that she did nothing to attract their attention. According to her statement of events immediately succeeding this, she again accompanied Loughlin on the streets, going back in the direction whence they had come, locking arms as before. She walked with him without protest until they were near the shop of a Mr. Kissinger, when she got away from him, and within a short distance met a girl friend, with whom she went to Anderson’s Hall, where she met several young women, conversed with them, and drank some pop. About a quarter of an hour thereafter she went to Lauer’s Hall with this girl friend. At this place she was informed that the back of her garments was much soiled, and she then stated to Mrs. Lauer and others that two men had had her. She then inquired for her brother, and shortly started for home with him, and upon arriving there, about 3 o’clock in the night, she retired until morning. She spoke to her brother of the affair on the way home, and the nest day told her mother about it.

Giving to these events and her acts and conduct the most favorable inference, they fail to show the essentials requisite to the crime charged. “It must appear that she showed the utmost reluctance and used the utmost resistance.” Don Moran v. People, 25 Mich. 356" court="Mich." date_filed="1872-07-13" href="https://app.midpage.ai/document/don-moran-v-people-6635739?utm_source=webapp" opinion_id="6635739">25 Mich. 356. Searching the evidence to find what resistance the prosecutrix made, we find her statement that she tried to push them off with her hand, and, when asked to describe what was done by her, she replies that she fought them all the time. The court seems to have laid some stress upon this answer. It is, however, of no probative force. It is merely a conclusion of the witness upon a subject involving her conduct, when the court should have insisted upon a statement of what actually took place, and let the jury find from the evidence in what respect and to what extent she fought them, in determining the ultimate question of what resistance she made. Looking into the record to find what reluctance she exhibited, we find no proof “of those symptoms of alarm or intense mental anguish or physical resistance that would be reasonably expected of a woman under such circumstances, in order to protect herself from a most grievous and impending outrage.” Bohlmann v. State, 98 Wis. 617, 74 N. W. 343.

The evidence is insufficient to establish the crime of rape, and the court should have granted the motions of the plaintiffs in error, dismissing the case as to this charge, and have submitted it upon the count supported by the evidence. A decision of these motions entitled the plaintiffs in error to the judgment of the court upon the question whether the evidence, in any view, could be held to establish the crime of rape, and, if it failed, it devolved upon the court to withdraw this charge from the consideration of the jury, and to dismiss them from further prosecution under this count of the information. The error necessitates a reversal of the judgment in the case.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial; and the warden of the state prison and the superintendent of the Wisconsin state reformatory are respectively directed to deliver Edward Devoy and James Loughlin to the sheriff of Sheboy-gan county, who is directed to keep them in custody, subject to further pror-aadings according to law.