142 Wis. 260 | Wis. | 1910
Lead Opinion
The plaintiff in error, hereinafter called the -defendant, was convicted of the crime of rape upon a seventeen-year-old girl, sentenced to imprisonment for the term of ten years, and brings error. The main question before us for consideration is whether the evidence is sufficient to support the verdict of guilty. The contention of counsel for defendant is that the state failed to prove nonconsent or loss of volition and submission by reason of loss of volition.
The evidence produced tends to show that on the day in question, February 13, 1909, shortly after Y o’clock in the •evening, the prosecutrix left her home in the city of Keno-sha, Wisconsin, to go to a party at the home of one Becker. She called at a house on the way for a girl friend, whom she did not find, and proceeded on her way to the party, stopping at a store to get a box of candy, where she remained about ten minutes, and then continued on her journey. She met defendant, whom she did not know. After she had walked a block she heard defendant running after her, and when he came up to her he took hold of her and spoke to her. She did not answer. He walked about two doors with her until they were about in front of the Becker bouse where she was •going. She screamed and he put his hand over her mouth.
We shall not attempt to detail tbe evidence at any great length. Tbe foregoing, however, gives a fair idea of tbe salient points proved and upon which tbe case turns. Defendant admitted having sexual intercourse with the prose-cutrix, but denied tbe force and threats. In other respects the story of tbe prosecutrix was substantially undisputed by tbe defendant. While there is considerable evidence to tbe effect that the defendant exercised force from tbe time be first assaulted tbe prosecutrix until be accomplished bis purpose, it is at least very doubtful whether the evidence of force was sufficient to support tbe verdict in tbe absence of evidence of tbe threats and fear induced by such threats. In order to constitute tbe crime of rape the evidence must show that tbe act was committed by force and against tbe will of tbe female; but where tbe female is rendered insensible through fright, or ceases resistance under fear of death or great bodily barm, tbe consummated act is rape. 1 Wharton, Crim. Law (10th ed.) § 557; Sharp v. State, 15 Tex. App. 171; State v. Ruth, 21 Kan. 583; 2 Bishop, Crim. Law, §§ 1120, 1122; Brown v. State, 127 Wis. 193, 199, 106 N. W. 536; State v. Reid, 39 Minn. 277, 39 N. W. 796; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; Wright v. State, 4 Humph. (Tenn.) 194; State v. Shields, 45 Conn. 256; Rahke v. State, 168 Ind. 615, 81 N. E. 584. As said in 2 Bishop, Crim. Law, § 1125:
“A consent from fear of personal violence is void; and though a man lays no bands on a woman, yet if by an array of physical force be so overpowers her that sbe dares not resist, bis carnal intercourse with her is rape.”
“This is not a case where the prosecutrix was overcome by threats of personal violence, and paralyzed and rendered helpless and passive by fear, so that her volition could not be exercised either for or against the act of sexual connection.”
And in Bohlmann v. State, supra, the court said:
“The power of resistance need not necessarily be overcome by superior physical force. If overcome by fraud or fear of serious personal injury, or if physical resistance becomes so useless as to warrant it ceasing upon that ground, there being no consent or submission in the sense of mental operation, the essential of the accomplishment of the act by force and against the will of the outraged party is fully satisfied. The law as thus laid down is too well understood and has been too frequently applied in this court to require discussion or call for any citation of authority.”
Counsel for defendant relies upon Brown v. State, 127 Wis. 193, 106 N. W. 536, and State v. Cowing, 99 Minn. 123, 108 N. W. 851, 9 Am. & Eng. Ann. Cases, 566. But the legal doctrine laid down in these cases is not out of harmony with what has been heretofore said in this opinion. In the Brown Case it did not appear that the female was overcome by fear or became paralyzed by threats and intimidation, and the evidence on the question of resistance was weak and insufficient to carry the case to the jury. The case was very different in its facts from the one now before us. The same may be said of other cases in this court in which convictions have been set aside for insufficiency of evidence, notably Bohlmann v. State, supra, and O’Boyle v. State, 100
“Where the testimony of the prosecuting witness bears upon its face evidence of its unreliability, to sustain a conviction there should be corroboration by other evidence as to the principal facts relied on to constitute the crime.”
In State v. Cowing, supra, the court reviewed the cases at great length on the question of the resistance necessary to be proved in order to constitute the crime of rape, and found that the evidence was insufficient, and, further, that there was no evidence of threats or intimidation on the part of the defendant or any intent on his part to use any means necessary to accomplish his purpose, nor any reasonable grounds for apprehension of bodily harm.
The inferences to be drawn from the evidence in the case before us are strongly against the defendant. It is unlike cases in this and other courts where the relations of the parties were such as to render a claim of nonresistance at least in some degree plausible or perhaps credible. The defendant and prosecutrix in this case were strangers. They had never associated together. That prosecutrix should consent to the sexual intercourse under the circumstances detailed in the evidence seems most improbable and unnatural. Besides, there is much corroborative evidence here that prosecutrix did not consent. True, there is evidence which would indicate that she did not resist to the extent of her ability, and if it were not for the evidence of threats of bodily harm it would be difficult, if not impossible, to sustain the conviction. But the attack upon this young girl by defendant was a brutal one and well calculated to terrify her and paralyze her with fright. We have referred to the substance of the evidence regarding the threats and need not repeat it in detail. Seiz
In 3 Russell on Crimes (6th ed.) p. 225, it is said: “The offense of rape may be committed, though the woman at last yielded to the violence, if such her consent was forced by fear of death or by duress.” In Wright v. State, 4 Humph. (Tenn.) 194, it was held that consent through fear was no defense to prosecution for rape. In State v. Ruth, 21 Kan. 583, 589, it was ruled:
“That if a person by threats, or by placing a female in fear of death, violence, or bodily harm, induces her to submit to his desires, and while under this influence ravishes her, this is as much a forcible ravishing as if a person, by reason of his superior strength, would hold a woman and forcibly ravish her.”
To the same effect is McQuirk v. State, 84 Ala. 435, 4 South. 775, 5 Am. St. Rep. 381; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; State v. Shields, 45 Conn. 256; Rahke v. State, 168 Ind. 615, 81 N. E. 584; Bailey v.
The court below and the jury saw defendant in this case as well as prosecutrix, heard their evidence, and were in a much better position to judge of the weight and credibility of the evidence than this court. The court is of opinion that the question of defendant’s guilt was for the jury. Williams v. State, 61 Wis. 281, 21 N. W. 56; Schuster v. State, 80 Wis. 107, 49 N. W. 30.
The point is made by counsel for the defendant that the court erred in its rulings on evidence, and that error was also committed by reason of remarks by the trial judge in the presence of the jury. The principal complaint of counsel is that the questions of the prosecuting attorney were leading. It is apparent, however, from the record that it was necessary in order to get at the facts to permit leading questions, and the trial court obviously recognized that. ' Whether or not leading questions should be allowed rests largely in the discretion of the trial court. Barton v. Kane, 17 Wis. 37, 42; Porath v. State, 90 Wis. 527, 537, 63 N. W. 1061; Bannen v. State, 115 Wis. 317, 91 N. W. 107, 965; Brown v. State, 127 Wis. 193, 206, 106 N. W. 536.
The court is of the opinion that no prejudicial error was committed on the trial below, and that the judgment should be affirmed.
By the Court. — Judgment is affirmed.
Dissenting Opinion
(dissenting). I am unable to bring my mind to the conclusion that the evidence justifies a conviction for rape. In my judgment the admissions of the complaining witness as to her failure to resist as well as to her active assistance in the very act make a legal conviction for rape
Dissenting Opinion
(dissenting). I concur in tbe emphatic dissent by tbe chief justice from tbe decision in this case.
In explanation of my position it must be said tbat I do not. understand tbe record as tbe court seems to have. It was not thought necessary in tbe court’s opinion to state evidence in ■detail, only generalities, in the main, from conclusions of tbe prosecutrix, which this court has frequently declared are not entitled to any weight. Bohlmann v. State, 98 Wis. 617, 74 N. W. 343; O’Boyle v. State, 100 Wis. 296, 75 N. W. 989; Devoy v. State, 122 Wis. 148, 99 N. W. 455; Brown v. State, 127 Wis. 193, 106 N. W. 536. In tbe last case cited the court, as to tbe requisite character of evidence to establish tbe vital facts of resistance and nonconsent, said:
“It is settled in this state tbat no mere general statements of tbe prosecutrix, involving ber conclusions, that sbe did ber utmost and tbe like, will suffice to establish this essential fact, but she must relate tbe very acts done in order tbat tbe jury and the court may judge whether they were omitted.”
Here tbe girl testified, over and over again, tbat sbe was ‘Terrorized.” Sbe endeavored to excuse herself for failing to do any of tbe acts which a woman would be naturally expected to do under tbe circumstances to prevent ber ravishment, upon tbe pretext tbat sbe was “terrorized.” When the accused was walking ber down to tbe chicken coop, passing by tbe doors and windows of several occupied bouses, sbe
All tkat repels tke idea of rape. True, tke woman wko met tke girl wken ske arrived at ker destination, testified tkat ■ske cried, and tkat the witness spent ker time endeavoring to soothe ker till after ske left tke Rouse to go Rome. Tkat story, in view of tke girl’s^ seems quite as unworthy of belief, as is tke latter’s that ske was “terrorized,” wkile ske was assisting tke accused to conveniently get to ker person, and assisting him to put on kis overcoat after tke affair was over and while tkey were walking away together and exchanging promises not to telL True, tke statement in tke court’s opinion would indicate some basis for tke verdict, but tke difficulty is, general conclusions of tke prosecutrix are dignified as evidence, contrary to, as said in tke Brown Case, “tke settled law of tkis state” in tkis class of cases. Take out of tke case suck general conclusions and look at just wkat tke witness said occurred and there appears, as tke chief justice indicated, a pretty clear case of fornication without sufficient resistance at any time to indicate tkat any power other than tke female’s own moral weakness under tke -influence of suggestion persisted in by tke accused, was necessary to accomplish ker consent.
Tke offense of rape is a terrible crime. There is about as muck difference between it and tkat of fornication as there is between assault and battery and murder. Indignation toward low male characters wko take advantage of tke moral weakness of suck of tke opposite sex as tkey may choose as prob
The dominant difficulty here is that there is hardly a circumstance as to the conduct of the two participants in the affair during or after the encounter to indicate a struggle of adversaries for the mastery. Absence of such after circumstances, alone, has been held to be fatal to conviction, notably in Bohlmann v. State, 98 Wis. 617, 74 N. W. 343; O’Boyle v. State, 100 Wis. 296, 75 N. W. 989; Devoy v. State, 122 Wis. 148, 99 N. W. 455. In the latter case the circuit court sent the case to the jury, mainly, as here, on general declarations of the prosecutrix, which, on appeal, were said to be of no probative force whatever.