Berg v. State

• Decision Date: 04 March 1969
• Docket Number: No. 50,50
• Citation: 165 N.W.2d 189,41 Wis.2d 729
• Parties: Glenn A. BERG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 189

165 N.W.2d 189

41 Wis.2d 729

Glenn A. BERG, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 50.

Supreme Court of Wisconsin.

March 4, 1969.

James H. McDermott, State Public Defender, Madison, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee County, Milwaukee, for defendant in error.

HEFFERNAN, Justice.

On this appeal the defendant contends that the uncontroverted testimony that the assailant of the prosecutrix had no erection during the incident in question establishes that such assailant had no intent to 'perform acts and attain a result which if accomplished, would constitute (the crime of rape).' We are satisfied that this defense is without merit. Although it is apparent that the inability of an assailant to achieve an erection is a defense to the crime of rape, it is not a defense to the charge of attempted rape. 1 Wharton's Criminal Law and Procedure, p. 652, sec. 314, points out, 'A man who is impotent cannot be guilty of rape as a principal in the first degree, although he may be guilty of an attempt to commit rape * * *.' 26 A.L.R. Anno. 769 refers to numerous cases holding that the general rule is that impotency whether the result of youth, age, or infirmity is not a defense to an assault with intent to rape, although evidence of impotency is admissible as being relevant to the intent with which an assault is made. These cases turn on the point that the mere failure to achieve an erection or to accomplish peneration is not controlling when there is other evidence probative of the intent to commit rape. These cases are declaratory of the same legal policy that is found in our general attempt statute, sec. 939.32 (2), Stats. (1965), which provides:

'An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.'

This statute was construed in State v. Damms (1960), 9 Wis.2d 183, 100 N.W.2d 592, 79 A.L.R.2d 1402. In that case this court sustained a conviction of a defendant who claimed that he could not have been found guilty of attempted murder when the pistol that he placed at his wife's head was unbeknownst to him not loaded. Relying upon the provisions of the attempt statute quoted above, this court concluded that the impossibility of accomplishing the shooting, due to the gun being unloaded, fell within the statutory words, 'except for the intervention of * * * some other extraneous factor.' In discussing the policy of that statute, this court quoted an article by Assistant Attorney General William Platz appearning in the 1956 Wisconsin Law Review at page 364:

"Emphasis upon the dangerous propensities of the actor as shown by his conduct, rather than upon how close he came to succeeding, is more appropriate to the purposes of the criminal law to protect society and reform offenders or render them temporarily harmless." State v. Damms, supra, page 188, page 595 of 100 N.W.2d.

In Damm's, supra, page 191, page 596 of 100 N.W.2d, this court stated:

'An unequivocal act accompanied by intent should be sufficient to constitute a criminal attempt. In so far as the actor knows, he has done everything necessary to insure the commission of the crime intended, and he should not escape punishment because of the fortuitous circumstance that by reason of some fact unknown to him it was impossible to effectuate the intended result.'

We consider that statement apposite to the instant case. In the event that the defendant took the position that the assailant of Marcy Ann was chronically impotent and it was either physically or psychologically impossible for him to achieve an erection and, hence, the accomplishment of sexual intercourse, this inability might be highly probative of the fact that one in such a situation would be most unlikely to attempt rape. The argument urging chronic impotency as a defense is not available to the defendant herein, for he steadfastly maintains that he was not the assailant. He relies upon the bald proposition that one who is unable to achieve an erection cannot form the intent requisite to commit the crime of attempted rape. The uncontradicted evidence of the assailant's conduct, his brutal physical attack, the choking of the prosecutrix until she partially disrobed, and his attempt to penetrate her are unequivocal evidence that his purpose was carnal copulation by force and without consent. His conduct was consistent with this purpose and with the expectation that such result would be achieved. There is no evidence whatsoever which leads us to conclude that the assailant's physical inability to achieve penetration was anything other than completely unexpected and unknown to him until the attack took place. Under these circumstances, the physical impotency of the defendant was an intervening extraneous factor which prevented the commission of the crime. It was, under the circumstances, a fortuitous event. Where, as here, the accused has done everything necessary to accomplish his objective of raping his victim, he may not escape punishment merely because of his unexpected idiopathic inability to achieve that result.

The principal defense asserted at trial was alibi. A friend James Sercombe, testified that he was continuously with the defendant from before noon on the day of the attempted rape until late in the day. Sercombe's alibi evidence was corroborated by the testimony of a Beverly Beaudoin, who stated that she had been with the defendant from sometime on the morning of November 19th until at least late in the afternoon, well after the time of the alleged offense. There was additional corroboration of these two witnesses by the testimony of the parking attendant at the Marine National Exchange Bank, who stated that he saw Sercombe, another young man, and Beverly Beaudoin in the Marine parking ramp, some distance from the scene of the crime, at or about the same time that the attack was made. A filling station attendant also testified that early in the afternoon he had seen Berg in the company of Sercombe. A teller verified Sercombe's story that he had been in the bank shortly after noon to make a car payment.

The defendant asserts that his alibi is a credible one and should have produced a reasonable doubt in the minds of the jurors that the attacker of Marcy Ann was Glenn Berg. It is true that the alibi evidence was strong and could have been believed. However, as this court has repeatedly stated, 'Testimony supporting an alibi does not raise a reasonable doubt as a matter of law.' State v. Grahn (1963), 21 Wis.2d 49, 52, 123 N.W.2d 510, 512. The credibility of a witness to an alibi defense is to be measured by the same test that we apply to other witnesses. The credibility and the weight to be given to the testimony of such witnesses is strictly a function of the jury. State v. Clarke (1967), 36 Wis.2d 263, 277, 153 N.W.2d 61. In the instant case the jury was within its province to believe the positive identification of the prosecutrix and to disbelieve the testimony of Berg's witnesses.

The defendant also argues on this appeal that the trial judge committed prejudicial error in excluding additional testimony which would have materially strengthened the alibi defense. He testified that, while at the Marine Bank and at or about the time that the assault took place, he attempted to cash a payroll check. It was the defendant's testimony that he asked one of the tellers to cash his check. Berg said that she responded that she would be unable to do so because he did not have an account at the bank. He testified that he told her that he usually cashed his check at a grocery store.

Jeanne Roeglin, a teller at Marine Bank, was called to the stand to corroborate the defendant's testimony. In response to the question by defense attorney, 'Do you recall talking to the Defendant on that date?,' Jeanne Roeglin answered, 'No, I cannot identify him as being the person.' Defense counsel then attempted to ask whether she recalled refusing to cash a check on that date for a man who had stated that he usually cashed his checks at a grocery store. The trial judge sustained the district attorney's objection to this question. Outside of the presence of the jury, the defendant then made the following offer of proof:

'Q. Do you recall on that day speaking to somebody--speaking to a male who indicated to you taht he cashed his checks at grocery stores?

'A. Yes.

'Q. * * * Do you recall whether or not you spoke to someone about cashing a check, and for whom you refused to cash a check?

'A. Oh, yes.

'Q. Do you recall seeing the defendant there on that date, November 19th of 1965?

'A. No, I can't--.'

The trial judge again sustained the objection to this testimony. It is contended on appeal that this testimony was admissible; and since it would have materially strengthened the alibi defense, the error in excluding it was prejudicial. The state contends that the evidence offered was not relevant and hence inadmissible. We agree with the defendant that this evidence was admissible. It was corroborative of a portion of the defendant's alibi testimony. In Oseman v. State (1966), 32 Wis.2d 523, 526, 145 N.W.2d 766, 768, this court stated, quoting with approval from 1 Wharton's, Anderson, Criminal Evidence (12th ed.), pp. 284--287, sec. 148:

"Evidence is relevant when it is persuasive or indicative that a fact in controversy did or did not exist because the conclusion in question may be logically inferred from the evidence. The criterion of relevancy is whether or not the evidence adduced tends to cast any light upon the...