76 Wis. 89 | Wis. | 1890
The following opinion was filed February 25, 1890:
In this case the defendant was tried and found guilty upon an information charging him with having unlawfully and carnally known and abused one Margaret Wentler, a female child under the age of fourteen years, on the 19th of July, 1888, in the county of Walworth. On the trial it appeared that at the time the offense was proven to have been committed the said Margaret Wentler was about thirteen years old; and it also appeared that the defendant was the father of said Margaret Wentler, and inferentially that the defendant was also a married man. After the verdict, and with the consent of the defendant,
While under the letter of the law this court might restrict itself to answering the specific questions submitted to it, still, when it is clear that the answering of such questions will be of no benefit to the state or the defendant, and when it further appears that the defendant ought not to be convicted at all upon the information filed against him, we consider it our duty to say so. We think the meaning of the law is that, in order to call upon this court to answer questions of law submitted by the trial court under the statute (sec. 4721, R. S.), it must appear upon the record submitted to ^this court that the defendant has been tried and convicted upon an information or indictment which charges some crime or offense punishable under the laws of this state, and that when that does not appear this court should so decide and decline to answer the questions submitted. The information upon which the defendant was convicted charges the defendant with no crime, unless it be the crime described in sec. 43S2, R. S., as amended by ch. 193, Laws of 1887. It is clear, we think, that it does not sufficiently charge fornication, adultery, seduction, or incest, nor forcible ravishment, and it can only be sustained as charging any crime on the hypothesis that ch. 193, Laws of 1887, which attempted to amend sec. 4382, R. S., was, at the time the offense was alleged to have been committed, a
Previously to the enactment of ch. 193, Laws of 1887, and from the time of the organization of the territorial government down to that date, the law in regard to rape had been unchanged, and was as prescribed by secs. 4381, 4382, R. S. 1878. In 1882 the legislature commenced changing the laws of the state in relation to sexual intercourse, and enacted ch. 73, Laws of 1882, changing the law in regard to fornication. That legislature also enacted ch. 282, Laws of 1882. In 1887, ch. 214, Laws of 1887, was enacted, punishing the abduction of females for purposes of prostitution, and ch. 193, Laws of 1887, was also enacted, attempting to amend sec. 4382, R. S. 1878; and in 1889 the legislature enacted ch. 368, Laws of 1889, amending secs. 4381,4382, R. S. 1878, and, by chapters 396 and 420, amended ch. 214, Laws of 1887.
At the time when the offense charged in the information was committed, in July, 1888, the following statutes had been enacted, and were unrepealed: Secs. 4381,4382, R. S., amended by ch. 193, Laws of 1887; sec. 4580, R. S., as amended by ch. 73, Laws of 1882, relating to the crime of fornication; sec. 4576, R. S., relating to the crime of adultery; sec. 4582, relating to the crime of incest; and sec. 4581, R. S., in regard to seduction.
Sec. 4382, R. S., as amended by ch. 193, Laws of 1887, declares that “ any person who shall unlawfully and carnally know and abuse any female child under the age of fourteen years, shall be punished by imprisonment in the state prison during his natural life.” Sec. 4381, R. S., de-
Oh. 282, Laws of 1882, and ch. 214, Laws of 1887, were also in force; but these acts relate to the abduction of females for the purpose of prostitution, and for punishing those who aid or assist in such abduction.
If all these laws are to stand as in full force, then it must be claimed by the state that incest, fornication, adultery, and seduction, when committed with a female under fourteen years of age, may be proceeded against under sec. 4382 as amended by ch. 193, Laws of 1887, and may be punished
These crimes, it is true, can only be committed with the consent of the parties committing them. See People v. Jenness, 5 Mich. 305, 321; De Groat v. People, 39 Mich. 124, 125; People v. Harriden, 1 Parker Crim. R. 344; Croghan v. State, 22 Wis. 444. But it is also true that a female under the age of fourteen may consent to. the commission of either of said crimes. Under the law as it stood before it was amended, punishing the ravishment of a child under the age of ten years, there was no confusion of that offense with the offenses of fornication, adultery, seduction, or incest, as it was a well-understood rule of the common law that a child under the age of ten years was incapable of consenting to the act of sexual intercourse which constitutes the crimes above mentioned. 4 Bl. Comm. 212; Fizell v. State, 25 Wis. 364, 368; State v. Erickson, 45 Wis. 86, 90.
It is clear to us that under sec. 4382, as amended in 1887, the offense punishable under the provision of the section is established when it is satisfactorily proven that the person charged with such offense has in fact had sexual intercourse with the female named in the information, and that she was under the age of fourteen years; and the means used for the purpose of accomplishing such intercourse are wholly immaterial. It may be brought about by persuasion, force, or fraud. Still the offense has been committed if the intercourse takes place, and it is as clearly applicable to a case of fornication, adultery, seduction, or incest as it is to a case of ravishment by force or fraud. As said above, we cannot believe it was the intention of the legislature to make such a radical change in the laws of the state; and, if that was intended by the legislature, then it has failed
We cannot believe the legislature intended any such result by this amendment. In view of the uncertainty and confusion which the attempted amendment of 1887 to said sec. 4382, R. S., would bring upon the execution of the criminal laws of the state, and the insuperable difficulty of determining, with any degree of certainty, what acts must be held to come within the provisions of the amended section, we are constrained to hold that public justice and a proper administration of the criminal laws of the state, require us to hold that the amendment is void for uncertainty (Norton v. Reed, 6 Wis. 522), and that sec. 4382 of the Revised Statutes was not altered or changed by the enactment of ch. 193, Laws of 1887. In our opinion, the attempted amendment fails entirely in accomplishing any reasonable
By the Goiort. — The questions submitted will be returned to the circuit court unanswered, and that court is advised to discharge the defendant.
The following opinion was filed May 20, 1890:
The defendant was tried for a criminal offense in the circuit court of Walwoi-th county, and convicted. The trial court thereupon certified certain questions of law to this court for determination, pursuant to the
It was said in State v. Williamson, 72 Wis. 61, that the practice which had been pursued by this court in a few instances of appointing counsel to prosecute writs of error,, had long been abandoned, and it was held that the appointment of an attorney by the trial court to defend the accused was sufficient authority for such attorney to prosecute a writ of error here. The same rule is applicable when questions of law are certified to this court.
The case of Dickerson v. The State, 48 Wis. 288, which came here in 1879 on writ of error, is one of the cases in which counsel was appointed by this court to prosecute the writ. After the case was disposed of, the counsel thus appointed, A. Hyatt Smith, Esq., applied to this court to certify to his reasonable compensation for his services. The application was denied, but no opinion was filSd. We denied the application on the ground that the statute above quoted referred to the court in which the prosecution was commenced, and the trial court in case of a change of
After due consideration of the whole subject we adhere to the above construction of sec. 4J13. We are also of the opinion that, in this and like cases, it is the duty of the court in which the prosecution originated, on application to the court and notice thereof to the district attorney, and on due proof of the services rendered in this court, to certify to a reasonable compensation for such services. The amount so certified is a proper county charge.
We do not here determine whether the county board of supervisors may or may not allow and pay for such services, within the statutory limit of-$lo per day, without the certificate of the circuit'court.
The motion is denied without costs.