| Wis. | May 31, 1913
The defendant contends that the evidence fails to establish the fact of his guilt of the crime charged in the information, and that the court erred in refusing to direct a verdict of not guilty. The grounds for this contention are that the evidence affirmatively shows that the defendant did not assault Agnes Secquist as alleged, and that the defendant and she, from the time they met on the evening in question, had an understanding by which she consented to sexual intercourse, and hence the essential elements of the crime were not proven. The finding of the jury that the defendant committed an assault upon her is abundantly supported by the positive and circumstantial evidence of the case. The jury were fully justified to find this fact from the evidence of Hughes, the persons at the normal school, and all of the details of what took place there and the defendant’s conduct as regards giving her the liquor, shown by his evidence and that of the girl and Hughes. Whether such an assault was made with the intent to commit rape is the serious question presented upon this branch of the case. It is insisted that Agnes Secquist’s conduct, from the time she communicated with the defendant on the evening of February 22d to the time of the .alleged assault on the normal school grounds, conclusively shows that she consented to hav
“In further explanation and palliation of this use of the word [consent], it has been held that forcible connection with a female who is insane, or an idiot, or intoxicated so as to be insensible, or who is deceived, believing the defendant to be her husband, and in other like cases, where the will of the female does not concur with the act, or oppose it, and does not act at all, and where she has no power of consenting or dissenting, the act is said to be ‘against her will,’ and this necessary ingredient of rape is present. 2 Whart. Crim. Law, § 1142, and note a; and as in Walter v. People, 50 Barb. 144" court="N.Y. Sup. Ct." date_filed="1867-09-09" href="https://app.midpage.ai/document/walter-v-people-5461558?utm_source=webapp" opinion_id="5461558">50 Barb. 144; People v. Quin, id. 128; and Crosswell v. People, 13 Mich. 421.
“In such cases it is consistent to hold that the act is ‘against the will’ only because it was not approved by the will, or the will did not concur with the act. In all cases where there is no sensibility or consciousness, or freedom of the will, the act is said to be against the will.”
As above stated, the evidence adduced fully sustains the
The court informed the jury that the crime of rape necessarily included an assault with intent to rape, and that a defendant charged with the latter offense could be convicted thereof if the jury found a rape had been committed, and proceeded by instructing them as follows:
“If the testimony convinces you beyond a reasonable doubt that the defendant Francis Quinn actually had sexual intercourse with Agnes Secquist at the time and place alleged, and that at the time of such intercourse the said Agnes Secquist was so intoxicated as to be incapable of either resisting or consenting to such act, then you should find the defendant guilty as charged. Or, if the testimony convinces you beyond a reasonable doubt that the witness Agnes Secquist, on the night in question, was so intoxicated as to be incapable of either resistance or consent to sexual intercourse, and then the defendant, with knowledge that she was so incapable of*581 either resisting or consenting, laid hands upon her with the intent then and there to have sexual intercourse with her, then you should find him guilty as charged.”
The first part of this portion of the charge is assailed as prejudicially erroneous because it asserts that it is not necessary that the defendant know of her intoxicated condition to warrant a verdict of guilty. It must be borne in mind that the charge preferred against the defendant was an assault with the intent to commit rape, and that the jury were repeatedly informed that this was the offense for which the defendant was being tried. The foregoing instructions must be considered in the light of this fact and the jury must be presumed to have acted in accordance therewith. Examining it from this viewpoint we do not find the instructions prejudicially erroneous, though the first part omits the element of knowledge by the defendant of her intoxication. The jury had their attention specifically directed to the necessity of finding that he must have had knowledge of her condition to authorize them to find him guilty as charged. We cannot think that the omission to bring this to their attention specifically in the first part of this portion of the charge misled them to defendant’s prejudice. Furthermore, the evidence on the subject is indisputable, to the effect that defendant must have known the actual condition as to her intoxication brought about through his own acts, and hence the alleged omission complained of in the charge could not have operated to his prejudice by having any of his rights substantially affected thereby. Reg. v. Camplin, 1 Den. Crown Cas. 89; Comm. v. Burke, 105 Mass. 376" court="Mass." date_filed="1870-10-15" href="https://app.midpage.ai/document/commonwealth-v-burke-6416211?utm_source=webapp" opinion_id="6416211">105 Mass. 376.
It is urged that the court erred in charging that if defendant gave Agnes Secquist the liquor with the intention fully formed in his mind of putting her in a condition of insensibility so that she had no power of opposing sexual intercourse with him and with the intent then present in his mind to have such intercourse with her while in such powerless condition, then the giving of the liquor constituted an assault
It is argued that the court erred in its charge to the jury in that it did not correctly state the law upon the question of reasonable doubt. We have examined the charge on this subject and find it substantially correct. The phraseology employed is in no way misleading to the jury, and they undoubtedly gave him the benefit of every reasonable doubt.
It is argued that the court erred in refusing to charge as requested upon the effect, in cases of this nature,- of outcry or its absence by the person assaulted. Under the evidence of Agnes Secquist’s condition, the instruction was immaterial and its omission deprived the defendant of no right. It is also argued that the refusal to give the requested charges as to circumstantial evidence was error. The evidence in the case is largely direct and positive in character and no neces
We have examined the case with care and find no reversible error in the record.
By the Court. — Judgment affirmed.