LE BARRON, Plаintiff in error, v. STATE, Defendant in error.
Supreme Court of Wisconsin
September 9—October 7, 1966.
294 Wis. 2d 294
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Platz, assistant attorney general, and Paul Leo Kelly, district attorney of Eau Claire county.
CURRIE, C. J. The appeal raises these two issues:
(1) Was the evidence adduced sufficient to prove the finding of defendant guilty beyond a reasonable doubt of the crime of attempted rape?
(2) Was trial counsel‘s handling of the defense of not guilty by reason of insanity and feeblemindedness such as to deny defendant a fair trial?
Sufficiency of Evidence.
In order to resolve the first issue it is necessary to set forth a résumé of the material facts adduced in evidence.
On March 3, 1965, at 6:55 p. m., the complaining witness, Jodean Randen, a housewife, was walking home across a fairly well-traveled railroad bridge in Eau Claire. She is a slight woman whose normal weight is 95 to 100 pounds. As she approached the opposite side of the bridge she passed a man who was walking in the opposite direction. The man turned and followed her, grabbed her arm and demanded her purse. She surrendered her purse and at the command of the man began walking away as fast as she could. Upon discovering that the purse was empty, he caught up with her again, grabbed her arm and told her that if she did not screаm he would not hurt her. He then led her willingly, she testified, so as to avoid being hurt by him—to the end of the bridge. While walking he
On the other side of the bridge along the railroad tracks there is a coal shack. As they approached the coal shack he grabbed her, put one hand over her mouth, and an arm around her shoulder and told her not to scream or he would kill her. At this time Mrs. Randen thought he had a knife in his hand. He then forced her into the shack and up against the wall. As she struggled for her breath he said, “You know what else I want,” unzipped his pants and started pulling up her skirt. She finally succeeded in removing his hand from her mouth, and aftеr reassuring him that she would not scream, told him she was pregnant and pleaded with him to desist or he would hurt her baby. He then felt of her stomach and took her over to the door of the shack, where in the better light he was able to ascertain that, under her coat, she was wearing maternity clothes. He thereafter let her alone and left after warning her not to scream or call the police, or he would kill her.
After he had left, she proceeded to a nearby restaurant, had a cup of coffee, and kept calling home by phone until she reached her husband. He came to the restaurant for her and upon reaching home he called the police to report the incident. Based on a description given by Mrs. Randen to city police, defendant was determined to be a suspect. Subsequently, he was arrested by the sheriff‘s department. At the police station Mrs. Randen identified the defendant as the man who accosted her.
Defendant, who was twenty-six years of age, denied being in the vicinity of the scene of the alleged attempted rape on the evening of March 3, 1965. He claimed that he was at the Wingad farm home between 6:30 and 7 p. m. on that night in the company of Janet Wingad, then seventeen years of age. However, neither Janet nor her mother were able to verify this alibi.
The material portions of the controlling statutes provide:
In Oakley v. State1 this court analyzed the two statutory requirements of intent and overt acts which must concur in order to have attempt to rape аs follows:
“(1) The male must have the intent to act so as to have intercourse with the female by overcoming or preventing her utmost resistance by physical violence, or overcoming her will to resist by the use of threats of imminent physical violence likely to cause great bodily harm; (2) the male must act toward the commission of the raрe by overt acts which demonstrate unequivocally, under all the circumstances, that he formed the intent to rape and would have committed the rape except for the intervention of another person or some other extraneous factor.”2
The thrust of defendant‘s argument, that the evidence was not sufficient to conviсt him of the crime of attempted rape, is twofold: First, defendant desisted from his endeavor to have sexual intercourse with complainant before he had an opportunity to form an intent to accomplish such intercourse by force and against her will; and, second, the factor which caused him to desist, viz., the pregnancy of cоmplainant, was intrinsic and not an “extraneous factor” within the meaning of
It is difficult to consider the factor of intent apart from that of overt acts since the sole evidence of intent
We consider defendant‘s overt acts, which support a reasonable inference that he intended to have sexual intercourse with complainant by force and against her will, to be these: (1) He threatened complainant that he would kill her if she refused to cooperate with him; (2) he forced complainant into the shack and against the wall; and (3) he stated, “You know what else I want,” unzipped his pants, and starting pulling up her skirt. The jury had the right to assume that defendant had the requisite physical strength and weapon (the supposed knife) to carry out the threat over any resistance of complainant.
We conclude that a jury could infer beyond a rеasonable doubt from these overt acts of defendant that he intended to have sexual intercourse with defendant by force and against her will. The fact, that he desisted from his attempt to have sexual intercourse as a result of the plea of complainant that she was pregnant, would permit of the opposite inference. However, such desistance did not compel the drawing of such inference nor compel, as a matter of law, the raising of a reasonable doubt to a finding that defendant had previously intended to carry through with having intercourse by force and against complainant‘s will.
Defendant relies strongly on Oakley v. State3 where this court held that defendant Oakley‘s acts were so equivocal as to prevent a finding of intent beyond a reasonable doubt to have sexual intercourse by force and against the will of the complainant. The evidence in the case disclosed neither physical violence nor threat of physical violence up to the time Oakley desisted from his attempt to have sexuаl intercourse with the complainant. He did put his arm around her and attempted to kiss her while entreating her to have intercourse, and also attempt-
The argument, that the pregnancy of the instant complainant which caused defendant‘s desistance does not qualify as an “extraneous factor” within the meaning of
“An unequivocal act accompanied by intent should be sufficient to constitute a criminal attempt. In so far as the actor knows, he has done everything neсessary to insure the commission of the crime intended, and he should not escape punishment because of the fortuitous circumstance that by reason of some fact unknown to him it was impossible to effectuate the intended result.”7
Alleged Denial of a Fair Trial Due to Acts of Trial Counsel.
On the issue of identity the police showed complainant only two men from whom to identify her assailant—defendant and a deteсtive whom she knew. Complainant testified she did not think she could have identified defendant if he had dressed differently. Janet Wingad and her mother did not flatly deny that defendant was at their home at the time of the attempted rape, but stated that they could not recall the facts well enough to enable them to testify one way or the other on this point.
On the basis of these facts defendant contends that the issue of whether defendant was the assailant of complainant was close. Proceeding on this hypothesis defendant argues that his trial counsel committed a serious blunder in introducing into evidence defendant‘s long prior criminal record and misdeeds as a child which may well have tipped the scales in causing the jury to conclude that defendant was the man who committed the acts testified to by complainant.
Defendant took the stand in his own defense and trial counsel by his questioning brought out these facts: When defendant was nine years old he set fire to a furniture factory in Eau Claire and another one at some stablеs in which a Percheron horse perished in the blaze. As a result defendant was sent to Mendota State Hospital in September, 1948. The next year, when ten years old, he was transferred to Southern Colony at Union Grove. In September, 1954, he was taken to the Wisconsin Diagnostic Center and given tests, and in October, 1954, was
Defendant now criticizes trial counsel for persisting in the insanity and feebleminded defense and introducing the foregoing prejudicial evidence in the record in furtherance of that defense in face of the overwhelming evidence that defendant was sane and not feebleminded. Thе trial court had appointed two psychiatrists to examine defendant before trial and they testified defendant was neither insane nor feebleminded. Defendant testified he considered himself sane.
The record reveals that defendant‘s trial counsel undertook conscientious cross-examination of the state‘s witnesses and esрecially of the complainant. In fact, counsel
Furthermore, there would seem to be arguable merit in the trial counsel‘s tactic. His client had been positively identified by a complaining witness whose physical condition made her a highly sympathetic figure; his alibi witnesses had refusеd to verify his alibi; and he had a long record of mental disturbance and causally related violence. Under these circumstances, trial counsel might have found himself criticized by later appellate counsel if he had not done everything in his power to get an insanity acquittal.
By the Court.—Judgment and order affirmed.
GORDON, J. (concurring). I concur with the court‘s holding. I also join in the court‘s оpinion except insofar as it attempts to distinguish Oakley v. State (1964), 22
In Oakley, this court labeled the defendant‘s conduct as “gross, obscene, and highly reprehеnsible.” (p. 309.) I am unable to accept the majority‘s effort to treat Mr. Oakley‘s atrocious actions as distinguishable from those of Mr. Le Barron. By trick, Mr. Oakley succeeded in entering the auto of a total stranger and drove her to a secluded place. Against her wishes and in spite of her tears he detained her for an hour. The prosеcutrix, who weighed a mere 107 pounds, testified at the trial in that case that she was unable to get out of the car; however, she resisted him in all his advances. Mr. Oakley persisted in his demand for sexual intercourse with her even after he physically verified her assertion that she was menstruating at the time. He exposed his penis. His other nefarious cоnduct is fully outlined at pages 301-303 of this court‘s decision.
The majority opinion in the case at bar points out that Mr. Oakley finally desisted from his attempt to have sexual intercourse with his victim. His ultimate failure “to renew this endeavor” cannot properly be construed to relieve him of the onus of his prior criminal conduct, nor should it now be utilized by the сourt to distinguish his intentions from those of Mr. Le Barron‘s; as Mr. Justice HALLOWS well stated in a dissent to the Oakley Case, at page 311:
“[T]hat the prosecutrix was successful in dissuading the defendant is not to his credit but to hers.”
In my view, the instant case only serves to demonstrate rather dramatically how erroneous was the holding in Oakley.
I am authorized to state that Mr. Justice HALLOWS joins in this concurring opinion.