Loescher v. State

125 N.W. 459, 142 Wis. 260, 1910 Wisc. LEXIS 202

• Court: Wisconsin Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinions

KebwiN, J.

The plaintiff in error, hereinafter called the -defendant, was convicted of the crime of rape upon a seventeen-year-old girl, sentenced to imprisonment for the term of ten years, and brings error. The main question before us for consideration is whether the evidence is sufficient to support the verdict of guilty. The contention of counsel for defendant is that the state failed to prove nonconsent or loss of volition and submission by reason of loss of volition.

The evidence produced tends to show that on the day in question, February 13, 1909, shortly after Y o’clock in the •evening, the prosecutrix left her home in the city of Keno-sha, Wisconsin, to go to a party at the home of one Becker. She called at a house on the way for a girl friend, whom she did not find, and proceeded on her way to the party, stopping at a store to get a box of candy, where she remained about ten minutes, and then continued on her journey. She met defendant, whom she did not know. After she had walked a block she heard defendant running after her, and when he came up to her he took hold of her and spoke to her. She did not answer. He walked about two doors with her until they were about in front of the Becker bouse where she was •going. She screamed and he put his hand over her mouth. Sbe bit bis band. He then grabbed ber by tbe throat, drew ber through an alley near tbe Becker bouse, until they came to a wasbline, which she took bold of and to which sbe clung. Defendant told ber to let go tbe wasbline or be would run bis knife into ber side, and, as be said this, pressed something against ber side. Defendant then drew prosecutrix across two lots, against ber will, to a chicken coop, and threw ber upon tbe ground, where water bad collected from melting snow. Sbe was frightened; tried to get up. He grabbed ber by the throat and tried to strangle ber. Sbe got up and tried to get away. He grabbed ber again and threw ber down, and sat or kneeled upon ber legs; put bis coat under ber bead, took off ber clothes, and, by renewal of tbe threats that be would run a knife into ber, made ber loosen ber elastics, then pulled down ber drawers, and bad sexual intercourse with ber against ber will. Sbe was paralyzed with fear. Just before tbe sexual intercourse, without stating in detail tbe vulgar language used, defendant said in effect that be did not want to commit murder, but did want to accomplish bis purpose. After tbe act be said be might get ten years for this, but that be would take tbe train for Chicago that night and be in New York tbe next day. After the act was committed prosecutrix helped defendant, at his request, to put on bis coat, and said sbe would say nothing about it, because sbe wanted to get away from defendant and through fear of refusing to comply with bis request to that effect. Sbe immediately after tbe act, and as soon as sbe could get away from defendant, hastened to tbe Becker bouse, pushed in the door, was in a state of great excitement, crying and sobbing, ber clothes wet from tbe water where sbe bad been thrown down, ber hair down and disarranged, ber face and eyes very red, appeared greatly exhausted, and said sbe bad been assaulted by a man and told what bad happened. Sbe lay on tbe couch in tbe Becker bouse for a long time with ber bands over ber face, and appeared to be in great distress. When defendant came borne at about 8 o’clock in tbe evening be was intoxicated. Defendant was a stranger to pros-ecutrix, sbe not having seen him to her knowledge before tbe time of tbe assault. Defendant was thirty years' old, and prior to tbe assault upon prosecutrix bad been twice convicted of burglary.

We shall not attempt to detail tbe evidence at any great length. Tbe foregoing, however, gives a fair idea of tbe salient points proved and upon which tbe case turns. Defendant admitted having sexual intercourse with the prose-cutrix, but denied tbe force and threats. In other respects the story of tbe prosecutrix was substantially undisputed by tbe defendant. While there is considerable evidence to tbe effect that the defendant exercised force from tbe time be first assaulted tbe prosecutrix until be accomplished bis purpose, it is at least very doubtful whether the evidence of force was sufficient to support tbe verdict in tbe absence of evidence of tbe threats and fear induced by such threats. In order to constitute tbe crime of rape the evidence must show that tbe act was committed by force and against tbe will of tbe female; but where tbe female is rendered insensible through fright, or ceases resistance under fear of death or great bodily barm, tbe consummated act is rape. 1 Wharton, Crim. Law (10th ed.) § 557; Sharp v. State, 15 Tex. App. 171; State v. Ruth, 21 Kan. 583; 2 Bishop, Crim. Law, §§ 1120, 1122; Brown v. State, 127 Wis. 193, 199, 106 N. W. 536; State v. Reid, 39 Minn. 277, 39 N. W. 796; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; Wright v. State, 4 Humph. (Tenn.) 194; State v. Shields, 45 Conn. 256; Rahke v. State, 168 Ind. 615, 81 N. E. 584. As said in 2 Bishop, Crim. Law, § 1125:

“A consent from fear of personal violence is void; and though a man lays no bands on a woman, yet if by an array of physical force be so overpowers her that sbe dares not resist, bis carnal intercourse with her is rape.”

This court bas often recognized the rule that where the will of the woman is overcome by threats of great personal injury there is no consent. Brown v. State, 127 Wis. 193, 199, 106 N. W. 536; Croghan v. State, 22 Wis. 444; Bohlmann v. State, 98 Wis. 617, 621, 74 N. W. 343; Whittaker v. State, 50 Wis. 518, 7 N. W. 431. In the last-cited case the conviction was reversed upon error in the charge, and in considering the subject of consent the court said:

“This is not a case where the prosecutrix was overcome by threats of personal violence, and paralyzed and rendered helpless and passive by fear, so that her volition could not be exercised either for or against the act of sexual connection.”

And in Bohlmann v. State, supra, the court said:

“The power of resistance need not necessarily be overcome by superior physical force. If overcome by fraud or fear of serious personal injury, or if physical resistance becomes so useless as to warrant it ceasing upon that ground, there being no consent or submission in the sense of mental operation, the essential of the accomplishment of the act by force and against the will of the outraged party is fully satisfied. The law as thus laid down is too well understood and has been too frequently applied in this court to require discussion or call for any citation of authority.”

Counsel for defendant relies upon Brown v. State, 127 Wis. 193, 106 N. W. 536, and State v. Cowing, 99 Minn. 123, 108 N. W. 851, 9 Am. & Eng. Ann. Cases, 566. But the legal doctrine laid down in these cases is not out of harmony with what has been heretofore said in this opinion. In the Brown Case it did not appear that the female was overcome by fear or became paralyzed by threats and intimidation, and the evidence on the question of resistance was weak and insufficient to carry the case to the jury. The case was very different in its facts from the one now before us. The same may be said of other cases in this court in which convictions have been set aside for insufficiency of evidence, notably Bohlmann v. State, supra, and O’Boyle v. State, 100 , 15 N. W. 989, 991, where the relation of the parties with each other, and the character of the evidence, were such as to render evidence of resistance incredible. In the O’Boyle Case there was no corroboration, and the court said (p. 300):

“Where the testimony of the prosecuting witness bears upon its face evidence of its unreliability, to sustain a conviction there should be corroboration by other evidence as to the principal facts relied on to constitute the crime.”

In State v. Cowing, supra, the court reviewed the cases at great length on the question of the resistance necessary to be proved in order to constitute the crime of rape, and found that the evidence was insufficient, and, further, that there was no evidence of threats or intimidation on the part of the defendant or any intent on his part to use any means necessary to accomplish his purpose, nor any reasonable grounds for apprehension of bodily harm.

The inferences to be drawn from the evidence in the case before us are strongly against the defendant. It is unlike cases in this and other courts where the relations of the parties were such as to render a claim of nonresistance at least in some degree plausible or perhaps credible. The defendant and prosecutrix in this case were strangers. They had never associated together. That prosecutrix should consent to the sexual intercourse under the circumstances detailed in the evidence seems most improbable and unnatural. Besides, there is much corroborative evidence here that prosecutrix did not consent. True, there is evidence which would indicate that she did not resist to the extent of her ability, and if it were not for the evidence of threats of bodily harm it would be difficult, if not impossible, to sustain the conviction. But the attack upon this young girl by defendant was a brutal one and well calculated to terrify her and paralyze her with fright. We have referred to the substance of the evidence regarding the threats and need not repeat it in detail. Seizing the prosecutrix by the throat, attempting to strangle her, threatening to put bis knife into her side if sbe resisted, accompanied by a movement indicating a purpose to do so, renewing these threats just before the act was consummated, and stating that he did not want to commit murder but did want to accomplish his purpose, in connection with other facts and circumstances in the case, were sufficient to warrant the jury in finding that the prosecutrix was prevented from further resisting through fright occasioned by the threats and that she never consented to the intercourse. As we have seen, failure to resist to the utmost of the female’s ability through fear of death or great bodily harm is no defense in a prosecution for rape. No complaint is made here that the jury was not properly instructed upon the law, and therefore we must assume, in the absence of anything appearing in the record to the contrary, that the jury found that the will of the prosecutrix was so overcome by threats of great bodily harm as to deter her from further resistance.

In 3 Russell on Crimes (6th ed.) p. 225, it is said: “The offense of rape may be committed, though the woman at last yielded to the violence, if such her consent was forced by fear of death or by duress.” In Wright v. State, 4 Humph. (Tenn.) 194, it was held that consent through fear was no defense to prosecution for rape. In State v. Ruth, 21 Kan. 583, 589, it was ruled:

“That if a person by threats, or by placing a female in fear of death, violence, or bodily harm, induces her to submit to his desires, and while under this influence ravishes her, this is as much a forcible ravishing as if a person, by reason of his superior strength, would hold a woman and forcibly ravish her.”

To the same effect is McQuirk v. State, 84 Ala. 435, 4 South. 775, 5 Am. St. Rep. 381; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; State v. Shields, 45 Conn. 256; Rahke v. State, 168 Ind. 615, 81 N. E. 584; Bailey v. Comm. 82 Va. 107; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218; Sharp v. State, 15 Tex. App. 171. In the case last cited there was practically no resistance. It appearing, however, that the female submitted through fear, a conviction was sustained.

The court below and the jury saw defendant in this case as well as prosecutrix, heard their evidence, and were in a much better position to judge of the weight and credibility of the evidence than this court. The court is of opinion that the question of defendant’s guilt was for the jury. Williams v. State, 61 Wis. 281, 21 N. W. 56; Schuster v. State, 80 Wis. 107, 49 N. W. 30.

The point is made by counsel for the defendant that the court erred in its rulings on evidence, and that error was also committed by reason of remarks by the trial judge in the presence of the jury. The principal complaint of counsel is that the questions of the prosecuting attorney were leading. It is apparent, however, from the record that it was necessary in order to get at the facts to permit leading questions, and the trial court obviously recognized that. ' Whether or not leading questions should be allowed rests largely in the discretion of the trial court. Barton v. Kane, 17 Wis. 37, 42; Porath v. State, 90 Wis. 527, 537, 63 N. W. 1061; Bannen v. State, 115 Wis. 317, 91 N. W. 107, 965; Brown v. State, 127 Wis. 193, 206, 106 N. W. 536.

The court is of the opinion that no prejudicial error was committed on the trial below, and that the judgment should be affirmed.

By the Court. — Judgment is affirmed.