Bannen v. State

Decision Date21 October 1902
Citation115 Wis. 317,91 N.W. 965
CourtWisconsin Supreme Court

On rehearing. Reversed.

For former opinion, see 91 N. W. 107.


The motion for a rehearing raises a question not discussed in the former opinion, and but barely alluded to in the printed argument of counsel. It is not surprising that, in the great multitude of objections raised and argued by the plaintiff in error, this should have been passed over in silence. The mistake in the printed record left the objection pointless, and for that reason it did not receive that consideration its importance deserved. The point now brought definitely and clearly to our consideration is the rejection of certain evidence offered by the plaintiff in error relative to the conduct of the prosecutrix toward him a short time before the alleged assault occurred. It related particularly to the previous relations of the parties. The offer of testimony was somewhat indefinite, but in the colloquy between the court and the counsel sufficient appears to indicate that the latter's purpose was to show the previous relations existing between the accused and the prosecutrix. In ruling upon the offer the court effectually cut off any inquiry in that direction. He informed counsel that: “No matter what was done at that time. It hasn't anything to do with this case, unless you propose to produce proof that this girl was a common prostitute.” Counsel disclaimed any such intention, and all testimony on that point was excluded. This was error, and of such serious a character as to require a reversal of the judgment. The plaintiff in error had a clear right to show, if he could, that the relations existing between him and the prosecutrix were of a friendly character; that her conduct toward him was of such a nature as to invite advances on his part; and this although such evidence would have no tendency to show that improper relations existed between them, or that her general character or reputation was bad. If their relations were in fact friendly,--if the girl's conduct was such as to invite friendly advances on his part,--the jury might conclude that he intended to accomplish his purpose by peaceable and persuasive measures, rather than by the exercise of force. The girl testified to the fact of forcible intercourse. The jury negatived that fact by finding the accused guilty of assault with intent to commit rape, only. The question of intent, therefore, became a matter of...

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