Bohlmann v. State

Citation74 N.W. 343,98 Wis. 617
PartiesBOHLMANN v. STATE.
Decision Date01 March 1898
CourtUnited States State Supreme Court of Wisconsin
OPINION TEXT STARTS HERE

Error to circuit court, Columbia county; John R. Bennett, Judge.

Otto Bohlmann was convicted of rape, and brings error. Reversed.

The plaintiff in error, Otto Bohlmann, was convicted of the crime of rape. The circumstances of the offense, according to the evidence of the prosecuting witness, were substantially as follows: Alvina Berg, a servant girl in the family of one Pugh, and a girl friend by the name of Dora Haubeck, about 12 o'clock at night, started to go home from a country dance. Bohlmann, a man about 27 years of age, who had become acquainted with the girls during the evening, without invitation or protest from them, started to accompany them home. The three went along a highway some distance, and then across the fields, to the house of Dora, on another highway. Bohlmann and Alvina walked together, arm in arm, most of the way, and some of the way each with an arm around the other. After the home of Dora was reached, she bade the others good night, and they proceeded on the highway towards the home of Pugh, which was about half a mile away. After going a short distance Bohlmann kissed Alvina, and she told him she did not want his kisses, and pushed him away a little. He then threw her down and she screamed “Dear, dear!” He put his hand over her mouth and she tore off his necktie, and got away from him and walked off fast. He followed, and after going a short distance, and near the house of one Lewis, caught up with her and the two then walked along together again till nearly to Pugh's house. Bohlmann then asked Alvina to go out on the side of the road to a grass plat by the road fence. She refused and went the other way. He then took hold of her and pulled her along over near the fence to the grass, then put his arm around, and kissed her. She made no outcry or physically resisted him in any way at that instant. He then threw her down on the grass and lifted up her clothes and unbuttoned the clothing nearest her person. Though her hands were free all the time, she made no outcry, and no resistance at all, except that she kicked with her feet. She said she struggled all she could, but when pressed to say what she did by way of struggling, said she kicked with her feet; that she was afraid he would kill her; that he said if she would not keep still she would know what he would do to her; that she asked him what he would do and he made no answer. The outrage there took place, no resistance being made other than as detailed. Her underclothes were not torn in any way and there were no marks of violence upon her person or upon his. She did not resist Bohlmann by the use of her hands at all, or by the making of any outcry, or in any manner except as before stated. She was a large strong girl, 15 years of age, weighed 125 pounds, and was accustomed to work in and out of doors. After the alleged offense was committed the two got to their feet and the girl went on a distance of about a block to Pugh's, and Bohlmann turned back. The corroborating evidence is to the effect that the girl's clothes were soiled with dirt, and there were some spots on her underclothing, and the next day she complained to her mother of the treatment she had received.R. B. Kirkland, for plaintiff in error.

The Attorney General, for the State.

MARSHALL, J. (after stating the facts).

It is an essential element of the crime of rape that the outrage be accomplished by force and against the will of the female. If she consents at all, however reluctantly or tardily, without reference to the resistance that precedes it, that operates in the eye of the law to reduce the offense to fornication or adultery, according to circumstances. The ingredient of the crime that gives to it its most heinous character, is that violation of the will by which the unlawful act is accomplished, not only in spite of the female's power of resistance, exerted to her utmost ability under the circumstances, but without her consent. The power of resistance need not necessarily be overcome by superior physical force; if overcome by fraud or fear or serious personal injury, or if physical resistance becomes so useless as to warrant its ceasing upon that ground, there being no consent or submission in the sense of mental operation, the essential of...

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12 cases
  • State v. Clarke
    • United States
    • United States State Supreme Court of Wisconsin
    • October 3, 1967
    ...771. It is relaxed somewhat if it would be useless to resist. State v. Waters (1965), 28 Wis.2d 148, 135 N.W.2d 768; Bohlmann v. State (1898), 98 Wis. 617, 74 N.W. 343. Here the jury was entitled to believe prosecutrix's testimony that during the entire incident her assailant held a broken ......
  • Brown v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • January 30, 1906
    ...in such cases. Conners v. State, 47 Wis. 523, 2 N. W. 1143;Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. Rep. 856;Bohlman v. State, 98 Wis. 617, 74 N. W. 343;Dodge v. State, 100 Wis. 296, 75 N. W. 954;Devoy v. State, 122 Wis. 148, 99 N. W. 455. Not only must there be entire absence o......
  • Gray v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • October 29, 1968
    ...142 N.W.2d 779; State v. Van Beek (1966), 31 Wis.2d 51, 141 N.W.2d 873.7 (1965), 28 Wis.2d 148, 135 N.W.2d 768.8 Bohlmann v. State (1898), 98 Wis. 617, 620, 74 N.W. 343, 344. ...
  • State v. Muhammad
    • United States
    • United States State Supreme Court of Wisconsin
    • December 3, 1968
    ...357.13 Id. at page 240, 280 N.W. at page 359. See also Loescher v. State (1910), 142 Wis. 260, 263, 125 N.W. 459; Bohlmann v. State (1898), 98 Wis. 617, 620, 74 N.W. 343.14 Supra, footnote 12, at page 244, 280 N.W.2d at page 361.15 Hintz v. Mielke (1961), 15 Wis.2d 258, 267, 112 N.W.2d 720;......
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