Brown v. State

Citation106 N.W. 536,127 Wis. 193
PartiesBROWN v. STATE.
Decision Date30 January 1906
CourtWisconsin Supreme Court

Error to Circuit Court, La Fayette County; Geo. Clementson, Judge.

Grant Brown was convicted of rape, and he brings error. Reversed.

Writ of error to review conviction for rape and 10 years' sentence to the state reformatory. The information alleged that: “On the 27th day of October, in the year 1904, at said county, Grant Brown did ravish and carnally know one Edna Nethery, a female of the age of 14 years and more, by force and against her will and against the peace and dignity of the state of Wisconsin.” The two parties were children of neighboring farmers who had known each other all their lives. The accused was 20 years old, the prosecutrix 16. Within the year before the event they had been thrown to some extent in company at social gatherings, at one of which at least had occurred direct personal contact in some games described as involving “kissing forfeits.” On October 29th the prosecutrix went by a usual path across fields to her grandmother's house for the purpose of having an aunt try on certain clothing being made for her. Such path passed by and over parts of the farm of defendant's father. Defendant was in the field driving out hogs and repairing a fence, and, as prosecutrix reached a stile, he was close thereto, so engaged. She addressed him in a playful way with reference to his work, and he suspended the same and came up to her. Her story is that he at once seized her, tripped her to the ground, placed himself in front and over her, unbuttoned her underclothing, then his own clothing, and had intercourse with her; that the only thing she said was to request him to let her go, and, throughout the description of the event, her only statement with reference to her own conduct was, repeatedly: “I tried as hard as I could to get away. I was trying all the time to get away just as hard as I could. I was trying to get up; I pulled at the grass; I screamed as hard as I could, and he told me to shut up, and I didn't, and then he held his hand on my mouth until I was almost strangled.” Also that at one time she got hold of the fence to try to pull herself away. Whenever he removed his hand from her mouth she repeated her screams. She denies any recollection as to the position of her limbs at any of these times, or where his were with reference to herself. She confined her statement of the force used by him to the actual sexual penetration. She makes no mention of any use of her hands or her lower limbs. After the completion of the intercourse she says he made her promise not to tell, and, upon her doing so, allowed her to arise. She says she made the promise because she was afraid of him, and did not know what he would do if she did not. Thereupon she proceeded to her grandmother's house, something more than a quarter of a mile, but, before entering the house, went into a shed, slightly off her direct course, to arrange her underclothing. There she discovered flow of blood, and, as she states, became frightened and rushed into the house to her aunt, where she at once exclaimed, Grant Brown has [done something] to me. O! what shall I do?” Whereupon the aunt immediately took her home and informed her mother. She was taken to the family physician for examination, who, however, postponed it until the next day, when, in company with another physician, a physical examination was made, disclosing fresh rupture of the hymen and a condition of the genital parts indicating recent sexual intercourse, but not significant as to whether the same had been accomplished forcibly or otherwise. Her person nowhere showed any bruises or injuries, nor did her clothing, except for a rip about an inch long in her drawers. At this examination she stated to one of the physicians that she had not resisted or made any fight. The defendant's story differed only in some details and in the denial of any resistance, asserting that when she came where he was at work and addressed certain playful remarks to him he approached her, placed his arm about her and indulged in certain liberties with her person, to which she offered no resistance, whereupon he laid her down and had intercourse with her; she at no time making any resistance or outcry. There were no marks upon his face, hands, or clothing of any struggle. Accused was a well–matured girl for her years, weighing 117 pounds. About a week before the event she had been ill with measles for four or five days, and made some suggestion that she had not fully recovered her strength on October 29th. Defendant's physical characteristics are shown only to the extent that he weighed 150 pounds, and had been brought up on a farm doing farmwork.

After verdict of guilty, a motion to set aside the verdict and for a new trial was made, for insufficiency of evidence, and also upon the ground, among others, of improper influence upon the jury. Affidavits of two of the jurymen were presented, showing that the jury retired about 5:30 p. m., at 7 o'clock were taken to a hotel for supper, and, after supper, several of them contributed $2 for the purchase of a box of cigars, the smoking of which in the jury room immediately commenced. That room was 18 by 15 feet, and the air became very foul. These two jurors, who at that time were the only ones remaining opposed to conviction, were not users of tobacco, and were made seriously ill, had to leave the room for a time, and afterwards suffered seriously from such illness, although their fellow jurymen had suspended smoking in deference to their condition. That about 10:30 the officer in charge informed the jury “that the judge of the court was about to go to his hotel for the night, and that the jury, as a consequence, would be locked up for the night, unless they very soon agreed upon a verdict.” The jurymen supposed, of course, that such incarceration would be in the room where they then were, although the judge had instructed the officer to clear out the courtroom and allow them to use that, but had given no directions that such fact be communicated to the jury. The affidavits proceed to state that, induced by this statement and in apprehension of serious illness if they were not able to escape from the vitiated atmosphere and have rest, these jurors announced their willingness to agree upon a verdict of guilty, although they still believed the defendant innocent, and after a short time such a verdict was agreed to, returned into court, and assented to upon polling of the jury. There were filed affidavits of the other jurors minimizing in some degree the apparent illness and suffering of these two jurors, and asserting that at first, when they offered to vote for conviction with the statement that they did so contrary to their opinions and merely to escape, their ballots were refused, but afterwards received. The judge also filed a statement upon the record exculpating himself from knowledge of the illness of these jurors. The fact of the communication by the officer was not denied, nor the illness, in some degree, of these two jurors as a result of the polluted atmosphere of the jury room. The motion for new trial being overruled, and sentence pronounced, the defendant sued out this writ of error to review the same.Orton & Osborn and E. F. Conley, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for defendant in error.

DODGE, J. (after stating the facts).

1. As the statement of facts discloses, the only mooted question was that of prosecutrix's physical resistance to the act of intercourse, and, as to this, counsel for plaintiff in error urges, with great force, that there was not evidence sufficient to satisfy any reasonable mind, beyond reasonable doubt, of such resistance as the law makes sine qua non to the crime of rape. We need not reiterate those considerations of the ease of assertion of the forcible accomplishment of the sexual act, with impossibility of defense save by direct denial, or of the proneness of the woman when she finds the fact of her disgrace discovered or likely of discovery, to minimize her fault by asserting vis major, which have led courts, and none more strenuously than this, to hold to a very strict rule of proof 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 of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated. We need not mention the exception where the power of resistance is overcome by unconsciousness, threats, or exhaustion, for, in this case, there is no proof of any of those things. Further, it is settled in this state that no mere general statements of the prosecutrix, involving her conclusions, that she did her utmost and the like, will suffice to establish this essential fact, but she must relate the very acts done, in order that the jury and the court may judge whether any were omitted. Bohlman v. State, supra; Devoy v. State, supra. Turning to the testimony of prosecutrix, we find it limited to the general statement, often repeated, that she tried as hard as she could to get away. Except for one demand, when first seized, to “let me go,” and inarticulate screams, she mentions no verbal protests. While we would reasonably recognize the limitations resting on many people in attempting expression and description, we cannot conceive it possible that one whose mind and exertions had, during an encounter of this sort, been set on resistance, could or would in narrative mention nothing but escape or withdrawal. A woman's means of protection are not...

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    • United States
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