100 Wis. 296 | Wis. | 1898
The evidence is very voluminous, and it is not practicable to give more than a brief abstract of the more material facts. The complainant, Annie Stegeman, was in the sixteenth year of her age, and at the time of the alleged offense, February 20, 1897, was at service in the family of one Fuhrman, a merchant, in the city of Elroy. She had been sent to the store, and on her way home met Myrtle Smith, an acquaintance, who came with her, and stayed until after supper; and then she took witness down town for a walk, first going to the post office, and Myrtle Smith said, “Come on; let’s go down town and take a walk.” After a time two boys followed them, and got as far as the corner, and caught hold of their arms, and wanted them to go out for a walk. She testified that she got away from them, and went around to the side door of Raetzman’s, and the boys
We think that in a legal point of view the evidence is wholly insufficient to sustain the charge of rape, for which the defendant was convicted. There can be no rape of a female, within the age of consent, where there is consent, no matter how reluctantly it be given. The connection must be against her will, and there must be the utmost reluctance' and resistance, or her will must be overcome by fear and terror so extreme as to preclude a resistance. The resistance must depend on the surrounding circumstances, and on "the relative physical strength of the parties. Mere verbal objections, unaccompanied by any outcry or actual resistance, are not enough to make the acts of the accused rape, or an attempt to commit rape. The allegation of force is to be proved by competent evidence showing either that the person of the woman was violated and her resistance was overcome by physical force, or that her will was overcome by duress or fear. Rut, before the defendant can be convicted of rape, it must be shown that the woman did not consent to intercourse, but that she used all the resistance' in her power under the circumstances up to the time of the intercourse. 19 Am. & Eng. Ency. of Law, 950; State v. Ward, 73 Iowa, 532; Comm. v. McDonald, 110 Mass. 405. To authorize a conviction of rape, the jury must believe that the offense was accomplished by force, and against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, or that her will was overcome by force or fear of the defendant. Strang v. People, 24 Mich. 1.
By the Court.— The judgment of the circuit court for Juneau county in this cause is reversed, and the cause remanded to that court with directions to proceed to a new trial thereof