Simmons v. State

166 N.W. 313, 167 Wis. 36, 1918 Wisc. LEXIS 40

• Court: Wisconsin Supreme Court
• Decided: February 5, 1918
• Status: Published

Opinion

Wihslow, O. J.

This judgment must be affirmed. The circumstances surrounding the crime were indeed unusual, as the story is related by the prosecutrix, yet there was corroboration of that story in the fact of the unsuccessful attempt to settle the matter, as well as in the fact of the ruptured hymen. The trial judge, with his superior opportunities of weighing the veracity of the witnesses, has approved the verdict, and we are content to approve his conclusion.

As to the claim that no sufficient resistance or outcry was shown, it is to be remembered that the prosecutrix was not yet a woman, and had no idea apparently what was being-done to her further than that it was an indecent act which gave her pain. She had indeed passed the age of fourteen, which is the age of consent as the law stood in July, 1915 (sec. 4382, Stats. 1913), but had the crime been committed two months later no proof of resistance would have been necessary, for by ch. 611, Laws 1915, passed in August of that year, the age of consent was raised to sixteen years, and it appears that in the great majority of .the states the age of consent is fixed at not less than sixteen years and in many at eighteen years.

As to the general question of the amount of resistance required by the law in a case, of this nature, this court has v.ery recently said:

“What constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament of the victim, the relations of the parties, her state of health, her physical strength, her age, her experience, her courage, her nervous condition at the time, and perhaps other circumstances naturally affecting her powers of resistance.” B- v. State, 166 Wis. 525, 166 N. W. 32.

The youth of the prosecutrix, as well as her ignorance of the true character of the act, are circumstances entitled to much weight in determining what will properly satisfy the requirement of utmost resistance in the present case. In view of those circumstances we are unable to say that there was an insufficient showing of resistance.

The alleged newly discovered evidence tended to prove another alibi. Doubtless the trial judge did not feel very kindly disposed toward this claim when it appeared that the main witness brought forward to prove an alibi on the trial had changed the dates of certain business transactions oh his account book in order to bolster up his testimony; but, however this may be, we think the ruling right on another ground. The new alibi was really but .a branch of the alibi attempted to be established on the trial, and the defendant’s attorney was aware of the newly discovered evidence before the close of the trial. He should have made application for time to produce the evidence then and should not have waited until a verdict had been rendered and then sought for a new trial.

By the Gowrjt. — Judgment affirmed.

OweN, J., took no part.