Hallows, C. J.
According to the complainant’s testimony, about 5:15 in the afternoon on August 2, 1972, the complainant witness was walking from 56th and Hampton Streets to her parents’ home on North 65th Street in Milwaukee. When she was about one and a half blocks from her parents’ house near the intersection of West 64th and West Luther Streets, Dumer came out between two houses and started to follow her. The complainant was a student at the University of Wisconsin-Milwaukee and at the time of the trial was twenty-six years old. Dumer was eighteen years old and a stranger to the complainant. Although the complainant witness walked fast, Dumer came aside of her and asked her where she was going and whether she would like company. He put his arm around her waist but he was repulsed. Thinking she might scare Dumer away, the complainant turned to a house hoping Dumer would think it was her parents’ home. However, Dumer grabbed her and pulled her to the sidewalk leading around the side of the house to the backyard. Twice she screamed for help as loud as she
could but received a blow in the eye and a bloody nose by Dumer’s closed fist and no help.
Dumer threatened her if she should scream again and then attempted to have intercourse in the backyard. She gave Dumer reasons why they should not have intercourse. She noticed two elderly people three houses away and pointed them out to Dumer. Dumer then pulled the complainant by the arm across the alley and into a clump of bushes where Dumer had intercourse although she made some attempts to prevent it. As soon as Dumer left, she ran into the alley and screamed that she had been raped.
A police officer testified that when he arrived at the scene, the complainant was visually upset, the right side of her face showed signs of swelling and redness. She had a bloody nose and her clothes and hair were disarrayed.
Dumer was arrested later that evening and admitted most of the facts detailed by the complainant through the point that he had bloodied her nose; the rest of the details Dumer claimed were voluntary on the complainant’s part and that she willingly submitted to intercourse. While it may be true the complainant finally gave up resisting, the record does not impress us any more than the testimony did the jury that she willingly had intercourse but rather her will to resist was overcome by force.
I. Jurisdiction.
The first claim made by Dumer is that the circuit court branch 18 for Milwaukee county wherein Dumer was tried had (1) no subject-matter jurisdiction, hence the judgment was void, and (2) the conviction is erroneous, hence the jurisdiction of the trial court was not properly invoked.
As to the first point, Dumer argues that the civil branch 18 of the circuit court, presided over by Circuit Judge Christ T. Seraphim, did not have criminal juris
diction (the case was assigned to him for trial). Dumer was arraigned and entered a plea of not guilty in branch 12 of the circuit court, criminal division, for Milwaukee county presided over by Judge John L. Coffey. Dumer expressed a desire for a jury trial and a preference for a trial sometime in October of 1972. Judge COFFEY inquired whether Dumer objected to trying a case before Circuit Judge Christ T. Seraphim, which Dumer did. Judge Coffey then indicated he might not be able to take the trial in October because he was to be calendar judge that month. He informed Dumer the trial might be transferred at the last minute if he were not able to get another judge to take the calendar. The trial date was postponed several times by Judge Coffey, who finally set the date in January of 1973. However, in November Dumer requested an earlier trial date and the case was transferred to Judge Seraphim for trial. The transcript contained the following remarks by Judge Coffey, “The court orders this case transferred to Judge Seraphim for trial.” The judgment roll recites the court ordered the “case transferred to Hon. Christ T. Seraphim pursuant to Chapter 46, Laws of 1971, sec. 251.182,
with consent of Judge Seraphim. Case set for jury trial on
November 24, 1972, at 8:30 a. m. in Branch 18.” Branch 18 of the circuit court was the last court created by the legislature and was designated a civil branch. At the time of the transfer, Judge Seraphim had been appointed by the chief justice under a general assignment to branches 11, 12 and 17 of the circuit court under sec. 251.182, Stats., commencing September 12, 1972, because of the “congested calendars in said branches of the court.”
Circuit courts in Wisconsin have original jurisdiction of all matters civil and criminal not excepted in the constitution or not prohibited by law.
Dumer argues civil circuit courts in Milwaukee county do not have criminal jurisdiction because such courts were “prohibited by law” by secs. 252.015 (2) and 252.02, Stats. These two sections provide special treatment for Milwaukee county in the court system. In sec. 252.015 (2)
it is provided that in Milwaukee county “branches 11, 12 and 17 shall be designated as the criminal court branches.” In order to deprive circuit courts of their criminal jurisdiction, the designation of branches 11, 12 and 17 would have to be exclusive. As we view this section, it is no more than an administrative designation to be sure that criminal cases
are assigned to the designated criminal branches. Neither does sec. 252.02
contain any prohibition or limiting of circuit courts’ criminal jurisdiction. This section is somewhat ambiguous in its reference to “all cases specified in s. 252.015 for the 2nd circuit criminal branch jurisdiction” because sec. 252.015 does not designate cases but merely provides that branches 11, 12 and 17 shall be designated as the criminal branches. In sec. 252.02 it is also provided that the clerk shall assign all the cases specified in sec. 252.015 to the criminal branches and shall be reassigned out in case of disqualification, illness or vacation of the judges or vacancies in branches 11, 12 and 17. We read sec. 252.02 to empower the clerk as an administrative duty to assign cases to the criminal branch and reassign cases in the specified situations. This does not limit the jurisdiction of the civil branches of the circuit court. The statute is also ambiguous in its
statements that all assignment of work to “said branches” by the clerk shall be subject to the “approval of said judges.” This means, and apparently Judge Coffey thought so, that a judge of a civil branch to which cases are assigned must approve the assignment, otherwise, a civil court branch’s work could be controlled by the criminal branch. However, such consent is not jurisdictional and a reassignment for purposes stated does not confer subject-matter jurisdiction on the civil circuit branch but merely invokes the subject-matter jurisdiction. We doubt whether the words of the statute, “the consent of said judges must be had,” means all the judges of the circuit court whose approval could be evidenced by rules of court adopted by them.
The administration of the courts in Milwaukee county is governed by the statutes, supreme court rules, and local rules. The judges of the circuit court for Milwaukee county have rules governing the transfer and reassignment of criminal cases, which are subject to other provisions of the statutes and the supreme court rules. The supreme court has promulgated rules
which were filed December 23, 1971, and amended June 6, 1973.
The local rule (rules have been promulgated by the judges of the circuit court for Milwaukee county.
See
2 Milwau
kee Code of Ordinances, Appendix, Rules of Civil and Criminal Practice of the Circuit Court for Milwaukee
County, as amended to March 1, 1972), civil and criminal court branches, Rule 3-E,
provides the reassignment of which is basically controlled by sec. 252.017, but this seems to apply to the family court. Rule 3-B,
procedure for reassignment, provides in sub. (1) the chief judge shall reassign the case by lot in the manner as cases are
originally assigned. Rule 4,
temporary absence of assigned judge, provides that in the absence of the trial judge because of illness or other reason the cases may be heard temporarily by any judge excepting that in a criminal branch such case is to be controlled by sec. 252.017, Stats. This latter exception refers to the family court and is apparently a mistake.
It is contended by Dumer that the procedure in the rules set up by the circuit judges was ignored in the instant case and an attempt was made to make branch 18 a criminal court branch contrary to the statute. It appears from the record that Judge Coffey had no power or authority as a calendar judge to transfer the case to Judge Seraphim as judge of civil branch 18. However, we think that Judge Coffey when he has the calendar and is also trying cases so that he cannot hear cases scheduled for trial, which amounts to a congestion in his court, he has power to transfer cases to judges assigned to the criminal branches by the chief justice, and Judge Seraphim was so assigned by the chief justice. When a case is to be reassigned to a civil branch, it should be sent to the chief judge for a reassignment by lot. However, the lottery system except for disqualification and other specific reason is not applicable to reassignment of cases within the criminal branch.
Dumer argues as his second point that his judgment of conviction was at least erroneous because the jurisdiction of the court was not properly invoked, citing various cases.
Application of Clark
(1908), 135 Wis. 437, 115
N. W. 387;
State v. Fischer
(1921), 175 Wis. 69, 184 N. W. 774;
Seyfert v. Seyfert
(1930), 201 Wis. 223, 229 N. W. 636;
State ex rel. Hammer v. Williams
(1932), 209 Wis. 541, 245 N. W. 663;
Galloway v. State
(1966), 32 Wis. 2d 414, 420, 145 N. W. 2d 761, 147 N. W. 2d 542;
State
v.
Wimberly
(1972), 55 Wis. 2d 437, 198 N. W. 2d 360.
The record and assignment of this case shows that it was assigned pursuant to sec. 251.182, Stats. The chief justice had assigned Judge Seraphim to the criminal branch. The authority given Judge CHRIST T. Seraphim to hear the case was as a judge of criminal branches 11, 12 and 17; and when he heard this case he was not sitting as a judge of civil branch 18. Dumer’s argument would apply if the case had been assigned to civil branch 18; it has no merit applied to branches 11, 12 and 17, because Judge Seraphim was sitting in the branch to which the case had originally been assigned by the clerk of court under sec. 252.02. In view of the judgment roll and giving Judge Coffey credit for making the assignment to a judge empowered by the chief justice to hear the case in a criminal branch, we must conclude that it was an erroneous note added by the clerk that the case was transferred to branch 18 instead of noting the assignment of the case to Judge Seraphim as an additional judge to branch 12 which seems to be the branch the case was assigned to by him.
II.
Suppression of evidence.
Dumer complains the prosecution willfully suppressed exculpatory evidence known to it and thus denied him his right to due process of law. This argument is based on the fact that after the jury had found Dumer guilty, counsel for Dumer asked for a stay of commitment so he
might move for a new trial on the ground of newly discovered evidence. He stated to the court that after the trial a man came up to him and asked him what he should do with a subpoena to testify on behalf of the state. Defense counsel asked the subpoenaed witness what he saw and the witness replied, “I saw it from the sidewalk to the back.” The court interrupted and stated the evidence was not newly discovered because the witnesses for the prosecution had been made available to him. Defense counsel admitted the witnesses were available but stated he had not spoken to them.
There are several things wrong with Dumer’s argument aside from the fact the evidence is not newly discovered; the motion was not made in writing or supported by affidavits or a request made for an evidentiary hearing. In
State v. Herfel
(1971), 49 Wis. 2d 513, 521, 522, 182 N. W. 2d 232, this court reiterated the standard requirements for granting a new trial on the basis of newly discovered evidence. They are: (1) The evidence must have come to the moving party’s knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial.
Estate of Eannelli
(1955), 269 Wis. 192, 68 N. W. 2d 791;
see Lock v. State
(1966), 31 Wis. 2d 110, 118, 142 N. W. 2d 183; and
also State v. Simmons
(1973), 57 Wis. 2d 285, 203 N. W. 2d 887;
State v. Van Ark
(1974), 62 Wis. 2d 155, 215 N. W. 2d 41.
In
Simmons,
this court discussed the obligations attendant upon the defendant in presenting his motion.
Id.
at pages 290, 291:
“. • • The moving party in a motion for new trial has the obligation to raise the issues which trigger the court’s discretion. . . .
“. . . One moving for a new trial has the obligation to include in his motion allegations, prima facie at least, to show reasons for a new trial. It is not sufficient to make assertions of a general nature. Moreover, where the allegations made can only be supported by the submission of additional evidence, an evidentiary showing must be made either by affidavit or by oral testimony.”
From the record we receive the impression that trial counsel (who is not counsel on this appeal) had poorly prepared his case. This evidence, whatever it might be, could have been discovered prior to trial. Defense counsel had an opportunity to question the prosecution witnesses and did not. An attorney cannot poorly prepare a case and then hope to bail himself out on the doctrine of newly discovered evidence; the doctrine is for the diligent. Dumer offered no excuse or reason for his failure to question these prospective witnesses before trial. The argument is also defective in that there is no showing that it is reasonably probable that a different result would have been reached on a new trial. As was pointed out by the trial court, what this witness is purported to have seen occurred after the threats were made to the prosecution witness and after Dumer had hit her to the point where she allegedly submitted. This court has several times said a state has no obligation to produce at trial every possible witness to the commission of an alleged crime.
Dillon
v.
State
(1909), 137 Wis. 655, 119 N. W. 352;
Brown v. State
(1965), 28 Wis. 2d 383, 137 N. W. 2d 53;
State v. Chacon
(1971), 50 Wis. 2d 73, 183
N.
W. 2d 84. Moreover, the record does not show the prosecution knew that the testimony of the witness would be exculpatory.
Whether evidence is newly discovered or not, if the evidence is exculpatory the defendant had a duty to make a request to the prosecution for such evidence before or during trial. Dumer failed to make such request or a motion before trial and failed to move before trial in accordance with see. 971.23 (3), Stats., for a list of wit
nesses whom the prosecution intended to call at trial.
In
Brady v. Maryland
(1963), 373 U. S. 83, 87, 83 Sup. Ct. 1194, 10 L. Ed. 2d 215, the United States Supreme Court held “the suppression by the prosecution of evidence favorable to an accused
upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Emphasis supplied.) In
Giles v. Maryland
(1967), 386 U. S. 66, 74, 87 Sup. Ct. 793, 17 L. Ed. 2d 737, that court held the prosecution may not allow
false evidence
to go uncorrected. This court has adopted the principles therein announced. In
State v. Miller
(1967), 35 Wis. 2d 454, 474-478, 151 N. W. 2d 157, we held
Brady
and
Giles
stated the rule that offered perjured testimony detrimental to the accused or suppressed testimony favorable or beneficial to him after a request therefore constitutes a lack of due process under the fourteenth amendment. In
Ramer v. State
(1968), 40 Wis. 2d 79, 86-88, 161 N. W. 2d 209, this court interpreted
Giles
to require only that the prosecution not allow false evidence to go uncorrected, albeit the truth may be relevant only to the credibility of a witness. In
Britton v. State
(1969), 44 Wis. 2d 109, 116-118, 170 N. W. 2d 785, we refused to extend the prosecution’s constitutional duty
to disclose to all evidence admissible and useful to the defense; likewise in
Goetsch v. State
(1969), 45 Wis. 2d 285, 292, 172 N. W. 2d 688, we held the prosecution’s failure to offer the defendant the tests administered by the department of health and social services to him for the purpose of facilitating his cross-examination of state witnesses at a
Huebner
hearing testing his need for specialized treatment under the sex crimes program was not error in the absence of a request therefor because “[t]he constitution imposes no duty upon the state to produce
unrequested
documents.” (Emphasis supplied.)
State v. Chacon
(1971), 50 Wis. 2d 73, 76, 77, 183 N. W. 2d 84, held the state is not required to conduct a discovery examination for the defendant. In
State v. Cole
(1971), 50 Wis. 2d 449, 455-457, 184 N. W. 2d 75, the defendant’s claim that the state had failed to disclose exculpatory evidence known to it did not amount to a
Brady
violation of due process for the reasons the defendant had never requested disclosure of same nor was the evidence exculpatory in fact, nor was the evidence in the exclusive possession of the state. In
Simos v. State
(1972), 53 Wis. 2d 493, 496-498, 192 N. W. 2d 877, this court read
Brady v. Maryland, State v. Cole,
and
Goetsch v. State
to require a defense demand for the exculpatory evidence as a precondition to claiming a violation of due process for suppression of same; and in
Mikulovsky v. State
(1972), 54 Wis. 2d 699, 722, 196 N. W. 2d 748, this court reiterated the necessity for a defense demand for exculpatory evidence.
Recently, in
Nelson v. State
(1973), 59 Wis. 2d 474, 208 N. W. 2d 410, this court undertook a substantial review of the entire subject of claimed prosecutorial suppression of exculpatory evidence and stated that “[w]hile the duty of the state to disclose exculpatory evidence has not been constitutionally extended to require full disclosure of all evidence helpful to the accused, there is
precedent for the proposition that evidence, material on the issue of accused’s guilt or innocence, should be disclosed to the accused even though it goes only to the credibility of a witness,”
id.
page 481. However, this court interpreted the recent United States Supreme Court case of
Moore v. Illinois
(1972), 408 U. S. 786, 92 Sup. Ct. 2562, 33 L. Ed. 2d 706, as having reaffirmed the necessity of a request by the defense for the claimed exculpatory evidence as a prerequisite for claiming prose-cutorial suppression of exculpatory evidence and reaffirmed
State v. Cole
holding that a. defense demand for claimed exculpatory evidence is indispensable. The court specifically rejected those cases
holding a specific request is not in all cases an indispensable prerequisite. Dumer may not claim prosecutorial suppression of alleged exculpatory evidence because he made no request therefore.
III.
Sufficiency of evidence.
Dumer argues there is not sufficient credible evidence to sustain his conviction for rape under sec. 944.01, Stats.
Rape is committed by force and against a per
son’s will. This may be accomplished by overcoming' the woman’s utmost resistance or overcoming her will to resist.
“Utmost resistance” has been termed a relative concept rather than an absolute concept by this court.
State v. Schmecur
(1965), 28 Wis. 2d 126, 185 N. W. 2d 842;
State v. Waters
(1965), 28 Wis. 2d 148, 135 N. W. 2d 768;
Gray v. State
(1968), 40 Wis. 2d 379, 161 N. W. 2d 892;
State v. Clarke
(1967), 36 Wis. 2d 263, 153 N. W. 2d 61, certiorari denied, 393 U. S. 861, 89 Sup. Ct. 140, 21 L. Ed. 2d 129;
State v. Herfel
(1971), 49 Wis. 2d 513, 182 N. W. 2d 232;
Baldwin v. State
(1973), 59 Wis. 2d 116, 207 N. W. 2d 630. The governing principles in respect to “utmost resistance” were set out in
McLain v. State
(1914), 159 Wis. 204, 206, 149 N. W. 771:
“It must be remembered that the term ‘utmost resistance’ is a relative rather than a positive term. What would be ‘utmost resistance’ on the part of a weak and nervous person, with a temperament easily frightened, might be the veriest sham on the part of a robust person in good health, whose nerves and courage are normal.”
In
State v. Schmear
(1965), 28 Wis. 2d 126, 130, 135 N. W. 2d 842, we stated that “While the law requires the utmost resistance as evidence of the woman’s will, the law does not require the useless or the impossible.” And in
State v. Waters
(1965), 28 Wis. 2d 148, 155, 135 N. W. 2d 768, we stated, “The strict physical-resistance requirement is relaxed somewhat if it would be useless to resist.”
See also Baldwin v. State, supra,
pages 124, 125.
We think the instant case is not one of overcoming utmost physical resistance by force but rather overcoming the complaining witness’ will by force. This alternative
requirement of sec. 944.01, Stats., that it be shown that the complainant’s will to resist was overcome by threats of imminent physical violence likely to cause great bodily harm was explained in
State v. Hoffman
(1938), 228 Wis. 235, 280 N. W. 357, as the law stood at that time:
“It therefore clearly appears that ‘the fear’ which renders the utmost resistance unnecessary is a ‘fear of death or great bodily harm,’ a ‘fear of great personal injury,’ or ‘serious personal injury,’ a fear that ‘so overpowers her that she dares not resist,’ a ‘fear and terror so extreme as to preclude resistance,’ a fear which renders her mind ‘well nigh incapable of continuing her resistance to repel him.’ The fear therefore must not only be real but so great as to terrify her and render her practically incapable of resistance.”
In
State v. Herfel, supra,
we rejected this rule and said:
“The test of whether a woman’s will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm is subjective and it need not be expressed in terms of fear and incapability to resist in every case. Some women may respond to the threat of gunpoint without great fear or being rendered incapable of resisting. Resistance may be completely and imminently dangerous. In such a situation, fear or terror not to resist as an expression of nonconsent may be supplanted by a strong motivation or belief which induces the choice to submit. The choice under such conditions, while philosophically a choice, is legally unfair and is legally no choice; it does not constitute legal consent. Resistance, or the lack of resistance ... is not the central issue in rape. It is only some evidence of whether the woman’s will to resist is overcome under the circumstances and this question depends upon other factors.”
In
Baldwin v. State, supra,
page 125, this court reiterated that, “A rational choice not to resist coerced through threats of violence and fear is not a legal choice and the decision to submit compelled by such threats, although rationally made, does not constitute a voluntary submis
sion. To say that there can be a coerced voluntary submission is patently contradictory.” The threats of death or serious bodily injury to the complainant need not be made in any particular manner to enable this court to conclude it was reasonable for the jury to have believed and found the complainant had been put in fear of her life or serious bodily injury so as to overcome her will to resist. Dumer argues the test should be objective and not subjective; we think not. The complainant had sought to summon help by screaming twice. Her efforts were to no avail. She was struck by Dumer and threatened with more violence if she tried to scream again. She began to bleed from the nose, and her right eye began to swell shut. She lost feeling in the right side of her face. This assumes significance in the light of her claim that she became very frightened because she had never been struck before. She was threatened by Dumer with the forcible removal of her clothing if she did not undress herself. The probability of imminent physical violence likely to cause great bodily harm was real. On the theory her -will was overcome, it is difficult to conceive how a woman in her early 20’s would consent to intercourse with a stranger behind bushes of an alley in broad daylight. We think the evidence was sufficient to sustain the verdict.
Dumer obtained a writ of error from his oral motion for a new trial. The state argues an oral pronouncement denying such a motion does not amount to an appealable order. Sec. 270.70, Stats., provides that “the filing of the judgment or order in either the circuit or county court in the office of the clerk constitutes the entry of the judgment or order.” In sec. 274.10 it is provided that any order defined in sec. 274.33 may be reviewed by the supreme court upon an appeal, and sec. 274.33 refers to appealable orders as those “made by the court,” listing them. However, an order is defined in sec. 270.53 (2) as “every direction of a court or judge made or entered in writing and not included in a judgment is denominated
an order.” While there was an oral order made for some purpose, it was not entered for appeal purposes. In
State ex rel. Hildebrand v. Kegu
(1973), 59 Wis. 2d 215, 216, 207 N. W. 2d 658, this court stated it had no jurisdiction to review an oral order dismissing a complaint in a paternity case, relying on
Alsmeyer v. Norden,
(1961), 14 Wis. 2d 451, 111 N. W. 2d 507. The court pointed out that while an oral order may be effective although it has not been reduced to writing it was necessary to reduce the order to writing although an administrative act to preserve the evidence of the order which was necessary to confer appellate jurisdiction and to comply with the entry requirement of an order under sec. 274.11 (4). Although the order may appear in the transcript and be filed with the clerk of courts, such is not an entry of the writing of the order within the meaning- of sec. 270.53 (2). Here, there was an oral order and no written order was ever entered denying a new trial. It is true, in
State v. Wollmer
(1970), 46 Wis. 2d 334, 174 N. W. 2d 491, and
Babbitt v. State
(1964), 23 Wis. 2d 446, 127 N. W. 2d 405, we held a conviction entry in the judgment roll amounts to “entry,” for purposes of former sec. 958.13, the predecessor of present sec. 974.03 and the judgment roll in the instant case shows that a motion had been denied, we do not think a notation in the judgment roll is sufficient entry of a motion for a new trial. Convictions by the court either upon a jury verdict or upon its own finding of guilty are in a different category than ordinary motions for a new trial. On this basis, the writ of error from the alleged order should be dismissed.
By the Court.
— Judgment affirmed; writ of error from order dismissed.