OAKLEY, Plaintiff in error, v. STATE, Defendant in error.
Supreme Court of Wisconsin
November 29, 1963-January 21, 1964.
BEILFUSS, J., took no part.
OAKLEY, Plaintiff in error, v. STATE, Defendant in error.
November 29, 1963—January 21, 1964.
For the defendant in error the cause was argued by William F. Donovan, district attorney of Rock county, with whom on the brief were George Thompson, attorney general, and William A. Platz and Robert D. Martinson, assistant attorneys general.
DIETERICH, J. The sole issue involved on appeal is whether there is credible evidence in the record upon which a jury could be convinced beyond a reasonable doubt that defendant Oakley was guilty of the crime of attempted rape. No issue is raised on this appeal as to the charge of impersonating a peace officer.
The testimony of the complaining witness, Mrs. [REDACTED], revealed the following facts. Mrs. [REDACTED] was driving north on Highway 51 between Beloit and Janesville on a Sunday morning at approximately 6:45 a. m. It was daylight, and although there was some haze, visibility was good. Mrs. [REDACTED] testified that there was little traffic on the highway at that hour. As she was driving toward Janesville, the defendant Donald Oakley, who was driving a 1941 model pickup truck, passed her and slowed down, crowding Mrs. [REDACTED] off the traveled portion of the highway and onto the shoulder. Oakley stopped his truck directly in front of Mrs. [REDACTED], walked back to her car and asked her through the open car window whether she knew the speed limit in that area. She replied that the speed limit was 50 miles per hour and then testified as follows:
“A. He said I was going faster than 50 and he said I‘d better move the car off the road, and he moved his truck and then I noticed he had taken my car keys. By that time I became suspicious, when he came back I asked who he was. He said he was in charge in this area. He said, I am
in charge in this area, he said could I see your driver‘s license . . . “Q. As this man came up to the car, you were behind the steering wheel, is that correct? A. Yes.
“Q. Was the window up or down? A. The window was down.
“Q. And what did he say? A. He asked me if I knew what the speed limit was there.
“Q. You told him you did? A. Yes.
“Q. And then what happened? A. He said I was going faster and I said I couldn‘t have been, I had looked at the speedometer, and he opened the car door and said he‘d better move the car off the road and that he would check my speedometer.
“Q. You automatically moved over without any further comment as he opened the door? A. He pushed me over said he wanted to move the car off the road so that he could check the speedometer.
“Q. You didn‘t say anything to him about moving the car? A. No, he surprised me when he opened the door—I had no reason to believe he was anything other than what he said he was.
“Q. He didn‘t say he was an officer did he? A. No—he acted like one.
“Q. In what way did he act like one? A. His manner at the time he talked about the speed limit that was just as I would expect a policeman to do.”
According to Mrs. [REDACTED], Oakley was not wearing a uniform, but was dressed in clean, well-pressed blue jeans and a light-blue sport shirt.
After they had traveled five or six blocks north on Highway 51, Oakley turned east on the Avalon road leading to Janesville. He drove on Avalon road for about five or six blocks and stopped the car. Mrs. [REDACTED] was then asked:
“Q. And all that time were you and he talking together? A. No. I had asked for identification, he had said I have it here and other than that, I asked three times for that, and other than that there was no conversation.”
“Q. Did he continue to keep his hands on your shoulders? A. Yes, he had them on me all the time.
“Q. Did he do anything else? A. He tried to kiss me, he had one hand around my shoulder, it would be his right hand and with his left hand he tried to pull up my skirt.
“Q. What were you doing during this period of time? A. Trying to push him away and plead with him to please let me go.
“Q. Did you make any attempt to get out the door of the automobile? A. I couldn‘t—the position I was in.
“Q. Why not? A. My back was against the door and I would have had to reach behind me. . . .
“Q. Did he attempt to touch any other portion of your body during this particular period of time? A. He tried to open my blouse, he did get one button open.
“Q. Did he make any attempt to reach inside your blouse? A. Yes, I pushed his hand away. . . .
“Q. In the course of this conduct, was there any conversation between you and the defendant? A. Yes, I was crying at the time and I asked him to let me go, he said, not just yet. I was trying to push him away but I was not having very much luck. I asked him to please just let me go. I told him I had had a recent miscarriage and was doctoring and would he please leave me alone. He said could he just put it in once. He said it‘s not going to hurt you, then I explained to him I was menstruating at the time and would he please let me alone. He said he wouldn‘t believe me unless I showed him, I said no and he kept on trying to pull up my skirt and said I should show him I had a pad on, I said all right and he said he would let me go.
“Q. During the time this conversation you have related took place, where were his hands? A. He had one around my shoulder and the other hand he was trying to pull up my skirt.
“Q. Then what happened? A. Then he said he would let me go.
“Q. Did he in fact do so? A. He started the car and went to go and he put the front end of the car in the ditch.
“Q. What happened then? A. He worked for a while getting the car out of the ditch, when he got it back on the road, he stopped the car and grabbed me again.
“Q. Would you describe again how he grabbed you at this point? A. He again put his arms around my shoulders just as he had before.
“Q. What did he do at this time? A. He said he was going to put it in just once, it was not going to hurt. He said it‘s not going to hurt you . . .
“Q. Was he fully clothed? A. Yes, he had opened his pants and taken his penis out.
“Q. Did you see his penis? A. Not until after I had pleaded with him to let me go home, I pleaded with him to let me go home, I pleaded with him to let me go and explained to him about my doctoring and would he please let me alone and then he said if you will touch it I will let you go, then I noticed it.
“Q. When you say touch it, to what do you refer? A. His penis.
“Q. Then what happened? A. I said no, I wanted to go home and would he please let me go that my children were waiting—about them being on my mind, I thought maybe if I told him about their being home he would feel sorry for me and let me go. He took hold of me and pushed my head down.
“Q. When you say he pushed your head down, down where? A. Onto his penis. . . .
“Q. With reference to his penis, did he force it into your mouth? A. He pushed my head down. I was squirming and his penis entered my mouth for a few seconds. I managed to pull away—I was squirming and trying to get away.”
Oakley then drove back to his truck, got out of the car and left, after telling Mrs. [REDACTED] not to scream or holler. Mrs. [REDACTED] drove into Janesville, and from there to her home in a nearby city, arriving at her residence at about 8:30 a. m. She took a sleeping pill and went to bed for a few hours. She phoned her hometown police department at
On cross-examination, Mrs. [REDACTED] testified that the whole encounter with Oakley lasted for about one hour. She testified that at no time did Oakley harm her although she “ached all over” for three days afterwards and that she was not bruised at all; that he never actually had sexual intercourse with her; that he made no effort to penetrate her; that to her knowledge she did not scratch Oakley; and that she did not attempt to sound the car horn at any time. Mrs. [REDACTED] was asked whether Oakley had threatened her with physical violence at any time, and she replied: “He didn‘t say he would kill me, anything like that, he made statements, I am going to put it in just once, it‘s not going to hurt you, things like that. As far as saying I will kill you, things like that, No.” She was also asked by defense counsel about her testimony on this point at the preliminary examination:
“Q. Mrs. [REDACTED], in that same preliminary examination, you were asked a question, referring to this man who was in your car:
“‘Q. He at no time had threatened to hurt you? A. He didn‘t threaten to kill me or anything like that.
“‘Q. He didn‘t make any kinds of threats to you did he? A. I don‘t remember any.’
“Q. Do you recall those questions and answers? A. Yes.
“Q. They were correct? A. I believe so.”
Mrs. [REDACTED] was thirty-one years old, the mother of two children, five feet, four inches tall, weighed 107 pounds, and was in good health. She has a high-school education.
Statutes Involved.
Sec. 939.32 . “ATTEMPT. . . . (2) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.”
Sec. 944.01 . “RAPE. (1) Any male who has sexual intercourse with a female he knows is not his wife, by force and against her will, may be imprisoned not more than 30 years.“(2) In this section the phrase ‘by force and against her will’ means either that her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm.”
The general attempt statute,
The crime of rape, as defined in
These statutory provisions lead to two conclusions as to the requirements for conviction of the crime of attempted rape: (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 rape 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.
Counsel for the defense concedes that Oakley‘s acts were directed toward the end that he would have sexual intercourse with Mrs. [REDACTED], but contends that his conduct clearly demonstrated that he never intended to have intercourse with her “by force and against her will.”
The state argues that the necessary intent was sufficiently proved, due to the fact that Oakley forced Mrs. [REDACTED] off the road and drove to a secluded area with the admitted intent to have sexual intercourse with her, and that since he did not know Mrs. [REDACTED], he had no logical reason to believe that she would willingly consent to his wishes. The state also contends that Oakley committed the requisite acts which unequivocally demonstrated his criminal intent, in that his acts were such as to thoroughly frighten a lone woman.
In Taylor v. State (1923), 180 Wis. 577, 583, 193 N. W. 353, this court spoke of the intent required in a case involving the crime of assault with intent to rape:
“It is necessary to show in such a case beyond a reasonable doubt that the defendant has committed an assault and that he intended to gratify his passion on the person of the woman notwithstanding any resistance on her part.”
The present Criminal Code was enacted by the Wisconsin legislature in 1955, after six years of research, debate, drafting, and redrafting. Assistant Attorney General William A. Platz discussed the new code at length in an article appearing in 1956 Wisconsin Law Review, 350, 364, and reached the following conclusion as to the element of intent as contained in the section on attempts:
“All of the inchoate crimes require more than a mere criminal intent. . . . Attempt requires acts toward the commission of the crime which demonstrate unequivocally that the actor had the intent to and would commit the crime unless prevented.”
In Garrad v. State (1927), 194 Wis. 391, 216 N. W. 496, the defendant was found guilty of feloniously advising the commission of a felony (sodomy) in violation of
State v. Hoffman (1938), 228 Wis. 235, 280 N. W. 357, was a prosecution for rape. The defendant met the com-
“From the testimony of the complaining witness it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof, and that she was in no reasonable sense dominated by that fear which excused the ‘utmost resistance’ within her power.
“While the evidence is well calculated to arouse keen indignation against the defendant who so persistently and importunately pursued the complaining witness, who at that time was a virgin, it falls short, in our opinion, of proving a case of rape.”
Mrs. [REDACTED] testified in the instant action that Oakley did not threaten her with physical violence at any time, and that she in fact suffered no physical harm at all—although she stated that she was “scared stiff” and afraid for her life during the encounter. There is nothing in the record to indicate that Oakley attempted to put his hand inside her blouse after she pushed it away at the very beginning of their hour-long encounter. After his first attempt at lifting her skirt, there is no testimony to indicate that he attempted to do this again. He at no time tried to get on top of her, but remained at all times seated on the seat beside her. It would appear from the facts that Mrs. [REDACTED] was successful in staving off Oakley‘s advances by verbal pleadings and protestations, and by pushing his hand away.
While Oakley‘s acts were gross, obscene, and highly reprehensible, they do not meet the statutory tests for conviction of the crime of attempted rape as set forth in
By the Court.—The judgment of conviction insofar as it finds plaintiff in error guilty of violation of
BEILFUSS, J., took no part.
HALLOWS, J. (dissenting). The majority view of what constitutes the crime of attempted rape depends too much on the fact the defendant did not succeed in committing rape rather than on what he attempted. How close the defendant came to succeeding is not the test.
An attempted rape begins with the initial act on a woman, not with the act of penetration. State v. Johnson (1954), 243 Minn. 296, 67 N. W. (2d) 639. What is required for a crime of attempt to commit rape is the intent plus acts evincing such intent. The question of resistance by the victim is not important as it is in the crime of rape. It is admitted the defendant had the intent to have intercourse
The prosecutrix was a young married mother who had taken her husband to an airport on an early Sunday morning. The defendant was a total stranger to her. He stopped her car on a public highway, forced himself into the car, drove her to a secluded area, and spoke strongly of intercourse. At all times he had his hand on her and she was so forced in such a position in the car that she could not get out. Although he made no express threats of physical violence, she testified that the situation and his overpowering presence and actions frightened her and made her afraid of her life. We cannot say this was an unreasonable fright. Women minding their own business have a right to use the public highways without expecting to be molested by men roaming the highways and byways in search of sex gratification. In addition to the foregoing, the defendant exposed himself and to say the least forcefully attempted an act of sex perversion in spite of the resistance of the prosecutrix.
If the intent to commit rape and the acts toward that end, which are clearly evident here, coincide, it matters not that the defendant did not complete the act of rape which in this case would have undoubtedly resulted except for “some other extraneous factor.” Such other extraneous factor need not be a policeman but can be any factor which prevented the actor from committing rape; nor need such factor be a force which prevents the actor against his will. It is sufficient that the extraneous factor causes the actor to change his mind.
The majority relies on three cases, none of which in my opinion supports its position. In Taylor v. State (1923),
The instant facts are not unlike those in Skulhus v. State (1915), 159 Wis. 475, 479, 150 N. W. 503, an attempted rape case, where this court stated, “Where a jury faces a situation characterized by a hostile assault having been unquestionably committed, as in this case, and, especially, by an utter stranger of intelligence and middle age, upon a young married woman, alone and in the ordinary performance of her domestic duties, they cannot be expected to draw any very fine line in respect to whether the assaulter purposed forcibly conquering and securing submission or only
On appeal, this court does not retry the case on the facts in the record to determine if each of its members is convinced of the defendant‘s guilt beyond a reasonable doubt. It is our duty to determine whether the evidence adduced, believed, and rationally considered by the jury, was sufficient to prove the defendant‘s guilt beyond a reasonable doubt. State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379; Johns v. State (1961), 14 Wis. (2d) 119, 109 N. W. (2d) 490. Here, the jury was correctly instructed on the crime of attempting to commit rape, the verdict had the approval of the trial court, and I cannot say that those who saw and heard the witnesses could not draw inferences from such testimony which would reasonably lead them to believe beyond a reasonable doubt the defendant was guilty of attempted rape. I must, therefore, respectfully dissent.
I am authorized to state Mr. Justice GORDON joins in this dissent.