Hannon v. State
| Decision Date | 10 January 1888 |
| Citation | 70 Wis. 448,36 N.W. 1 |
| Parties | HANNON v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to municipal court of Dane county.
Edward Hannon was convicted of the crime of rape, and he brings error.E. P. Vilas, Jr., for plaintiff in error.
Atty. Gen. C. E. Estabrook, for defendant in error.
The plaintiff in error was complained of and arrested on the charge of rape upon the person of Bertha Waldon, a married woman about 18 years old. The charge was that the crime was committed on the morning of Sunday, February 13, 1887, between the hours of 2 and 6 A. M. The complaint was made, and the accused arrested, about 10 P. M. of the same day. The accused was held to bail, but imprisoned for want of bail. The district attorney, by direction of the court, filed an information against him in the municipal court of Dane county. The information was filed February 21, 1887. On the second day of March, 1887, the accused was arraigned in court upon such information, and pleaded not guilty. On the third of March, a jury for his trial was drawn. The jury were summoned for the eighth day of March, 1887, upon which day a trial was had, and the cause was submitted to the jury. The jury remained out, unable to agree, until the morning of the ninth of March, when they came into court and announced that they had not agreed upon their verdict, and thereupon the court further instructed them, and they again retired, and shortly after agreed upon a verdict finding the defendant guilty of the crime charged in the information. Before sentence, the defendant moved to set aside the verdict for error of the court in the admission of evidence and in his instructions to the jury. The motion was overruled, and judgment was pronounced upon the verdict. This judgment is brought up for reversal by a writ of error directed to said municipal court. A bill of exceptions was duly settled, containing all the evidence, the instructions of the court, and the exceptions taken to the evidence and instructions.
Upon reading the evidence in the case, there can be no doubt but that the verdict of the jury is amply supported, if they believed the evidence given on the part of the state. That the jury did believe the evidence on the part of the state is clearly established by the fact that they found the defendant guilty of the crime charged. After a careful consideration of the evidence, we find no sufficient reason for believing that the testimony given by the complaining witness, so far as the material facts are concerned, is not worthy of belief. The verdict and judgment must stand, unless the court in the course of the trial committed some error, either in the admission of evidence or in instructing the jury, which might have prejudiced the defendant.
It is claimed by the learned counsel for the plaintiff in error that the judge erred in permitting her husband, as a witness for the state, to testify that she made complaint of her ravishment to him, and showed him the marks upon her person. This objection to the evidence is not supported by any authority. On the contrary, it has been held, both in this country and in England, from the beginning of the history of the administration of criminal law, that such evidence is competent for the purpose of corroborating the testimony of the complaining witness, and that the want of such evidence of corroboration is always considered a suspicious fact, and highly prejudicial to the cause of the state. 13 Vin. Abr. 155, tit. “Rape,” 10. It is said: “In conspiracy for rape, it must be laid that there was recens prosecutio, otherwise it will argue a consent; and therefore, because the defendant did not indict the plaintiff for the rape in convenient time after the rape was supposed to be done, but concealed it for half a year, and then would have preferred an indictment, it was held to be false and malicious.” On the same page, the author remarks: “Bracton says ‘that immediately after the fact she ought to make hue and cry at the neighboring towns, and show the marks of violence to persons of reputation, at least.’ ” Again, on the same page: “It is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact.” These rules in regard to the crime of rape laid down by the old authors have been recognized by the courts down to the present time; and the fact that the complaining witness made early complaint of the offense charged has always been considered strong corroboration of her charge; and the fact that she made no complaint at the time, and delayed the prosecution, has always been considered a suspicious circumstance against the prosecution. In this case, the complaining witness testified that, as soon as the accused left her house, she left the house and went to Mrs. Marston's, her nearest neighbor, and told her what had been done; and that, when she met her husband on the same day, she made complaint to him. Rex v. Clarke, 2 Starkie, 241; Reg. v. Osborne, 1 Car. & M. 622; Reg. v. Megson, 9 Car. & P. 418; State v. Niles, 47 Vt. 82;Baccio v. People, 41 N. Y. 265; Reg. v. Walker, 2 Moody & R. 212; People v. McGee, 1 Denio, 19;People v. Hulse, 3 Hill, 316;People v. Mayes, (Cal.) 6 Pac. Rep. 691;People v. Tierney, (Cal.) 7 Pac. Rep. 37;State v. Richards, 33 Iowa, 420;State v. Clarke, 28 N. W. Rep. 606;People v. Gage, (Mich.) Id. 835. These cases all hold that it is proper for the prosecution to show that the complaining witness made complaint of the alleged ravishment, and that the person to whom the complaint was made may be called as a witness on the part of the state, and may testify that such complaint was in fact made; but the particulars of the statements made by the complainant witness cannot be given in evidence, except in a case where the person ravished is very young. There certainly was no error in permitting the husband of the prosecuting witness to testify that she made complaint to him of the outrage when she first saw him on the evening after the offense was claimed to have been committed; nor was there any error in permitting him and the medical witness to testify to the existence of the marks and bruises upon her person. There is no suspicion attached to the case of the state arising from delay in the prosecution. The injured party, in the language of the old law, made immediate “hue and cry,” and had the defendant arrested within a few hours after the alleged crime was committed.
It is insisted that the learned trial judge erred in his instructions to the jury. To the instructions given by the judge before the jury first retired no great objection is made. One general objection made to these instructions is that the court stated to the jury that, to some extent at least, the evidence of the complaining witness was corroborated by the other testimony in the case, especially by the testimony of her husband and the medical witness as to the existence of marks and bruises upon her person, and the evidence of the husband as to the condition of the bed and clothing of his wife as he found them upon his return to the house on Sunday, after his wife had left the house. We think this evidence was clearly corroborative of what she had testified to, especially in regard to these particular matters, and were at least circumstances which tended to prove the main charge against the defendant. The judge might have stated that the evidence that she made complaint to her husband was also corroborative of the main fact. This is so held in all cases which hold that evidence that complaint was made is admissible on the trial. In Baccio v. People, supra, Justice WOODRUFF, in delivering the opinion in that case, says: “It is not necessary to consider the exceptions taken by the prisoner's counsel to the refusal of the court to instruct the jury that the uncorroborated testimony of the female upon whose person a rape has been committed is insufficient to convict the prisoner as the guilty party, further than to say that, if the testimony of the mother was properly received in evidence, then the testimony of the injured female was corroborated, and there was therefore no ground for the request.” All the mother had testified to on the trial was the complaint made to her by the daughter some time after the alleged rape. We...
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