79 Wis. 546 | Wis. | 1891
The plaintiff in error was convicted of having, on the evening of August 17,1890, made an assault upon the complaining witness, Clara, with intent to commit the crime of rape. Upon that conviction he was sentenced to the state prison for the term of one year, under sec. 4383} R. S. The serious question presented is whether the evi: dence is sufficient to support the verdict.
The testimony of the complaining witness is manifestly colored, and to some extent contradictory; but she, in ef-feet, admits that at the time named she was nineteen years of age, and made her home at her brother’s on Greenwood street; that on the afternoon of the day named she was at a picnic in Ingram’s grove, on Linden street, in Fond du Lac; that she. started from there to go to her brother’s'; that about half past six she was overtaken by Moore on Linden street, between Tenth and Eleventh streets ; that prior to that time she had no acquaintance with him, did not know his name, and had never seen him; that they walked and talked along together down to Twelfth street, about three blocks from her brother’s; that they thus continued on Twelfth street to Main street; that, as the streetcar came along, she expressed a regret that it did not pass her brother’s house, so that she could go home on the streetcar ; that he then asked her to take a ride on the street-car; that she then told him she could buy the tickets at three cents apiece in a store near; that he then gave her twenty-
Were the facts thus admitted by the complaining witness such as to warrant the conviction of an assault upon her with intent to commit the crime of rape? There is testimony tending to prove that his purpose was to have connection with her. It is conceded that he so intended if he could obtain her consent. The final result indicates that she never really intended to give such consent. Her conduct, under the circumstances stated, however, was well calculated to invite importunities. He appears to have been excessively importunate, especially at the fence; but the evidence is not such as to warrant a verdict that he was guilty of an assault upon her with intent to carnally know and ravish her by force and against her will. This is the essence of the offense. Hull v. State, 22 Wis. 580; Croghan v. State, 22 Wis. 445. To render him guilty of such an offense the evidence must show beyond a reasonable doubt that the accused not only intended to have sexual intercourse with the complaining witness, but that he intended to use whatever force might be necessary to overcome her resistance
By the Court.—The judgment of the circuit is reversed, and the cause is remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Fond du Lac county, who will hold him in custody until he shall be discharged or his custody changed by due process of law.