Skulhus v. State

| Wis. | Jan 12, 1915

MARSHALL, J.

The jury and the trial judge saw the participants in the event which resulted in the accused being put upon his trial for the serious offense of which he was convicted. Seeing' the person assaulted and hearing her testify, and observing the accused during the trial, though he did not testify, might properly have had a very efficient influence in producing the decision complained of. Presumptions in that regard are to be considered in support thereof, in addition to all reasonable inferences from the evidence, found in the record.

True,( notwithstanding the conduct of the accused was highly reprehensible from any point of view, and he deserved severe punishment therefor, he did not commit the crime for which he was convicted, unless at the time he made the assault, or at some time during its continuance, he purposed, violating the woman, as charged, forcibly and against her will. If he did, it matters not, that fear of detection and the consequences of his act, or the manner and degree of resistance, caused him to desist. While in a case of this sort the' conduct of the assaulted party as regards self-defense is very strict in favor of the idea that some offense, if any, less than the highest was attempted or perpetrated, it must not he lost-sight of that it is consent by the assaulted party, however reluctantly given, and a purpose to secure Consent, regardless of the means used to accomplish it, which robs the act of the vital element of the highest offense which can be committed upon womanhood, — not submission or purpose to secure submission. There may be, under some circumstances, the latter or a purpose of securing it, and utter absence of consent, on the one side and determination to conquer the will as well as the body on the other, characterize the event.

The evidence in this case must be viewed in the light of the foregoing. Conditioned that there be no consent, a woman is not compelled, in her self-defense, to resist unto death, or continue to physically resist in face of reasonably supposed imminent peril of great bodily harm, or controlling terror,— to avoid being socially convicted, and ojaen to be efficiently charged before the law, of being guilty of the highly immoral offense requiring only consent, though reluctantly given.

The maxim, “There is reason in all things” applies in this field as well as in any other, and enters into the rule stated with misleading omission of any explanation that resistance to the uttermost, both mental and physical, and executed purpose to overcome such resistance, is essential'to the offense of rape, and assault with such purpose is essential to the necessary, precedent offense.

Regardless of the moral aspects of the matter, there is no middle ground in the law between the highest offense upon woman, including the essential precedent offense, and that where both parties are to be treated as participants in violating the law and candidates for punishment by the law, and by social condemnation where the penalties to woman are quite as severe as those prescribed by statute. Therefore,, while the duty of self-defense and the essentials of its efficient performance are very great, as has been stated, the dividing line being between consent and submission with criminal participation on one side and entire absence of it and abhorrence of the act by one party, on the other, the real fact of the matter is often one of extreme difficulty to determine, especially in a case where, as here, it is not claimed that the intended offense proceeded beyond a preliminary assault. The ultimate must be read out of inferences arising circumstantially. To do that is peculiarly a jury function. It would take an extreme case to impeach the result reached, especially when approved by the- trial judge.

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 of obtaining consént. To reason that, where a person circumstanced as the accused was, goes as far as he did, the probabilities are all in favor of the view that he intended full accomplishment, regardless of opposition, notwithstanding he was aroused to a full sense of his danger by an outcry liable to bring assistance to his victim, is logical and certainly permissible.

The conduct of the accused may well be viewed as conclusively negativing any purpose other than to have carnal knowledge of the body of the woman regardless of opposition from her. That he desisted as soon as an outcry was made, is evidentiary to the contrary, but not, necessarily, of sufficient weight to create a reasonable doubt as to what his real purpose was and that he was so recalled to the peril of his situation. It may be conceded that, for the time being, the .accused was so mentally perverted and so controlled by his mere animal nature that he was deaf to the consequences of his act, unless he was actually insane, of which there is no proof; but that affords him no excuse..

We have thus written at considerable length because of the earnestness with which counsel contended that the circumstances characterizing the occurrence in question leave, so clearly, a reasonable doubt as to the purpose of the accused, that the jury was not warranted in finding him guilty of more than the offense of assault. We have purposed in deciding the case, to make such full response to such contention as to indicate that it has been carefully considered in all its aspects.

While the foregoing has been primarily addressed to the contention that there is no sound basis in the evidence for the' verdict, it covers, sufficiently, all points suggested in respect to instructions and refusals to instruct.

By the Court. — The judgment is affirmed.