Means v. State
| Decision Date | 03 October 1905 |
| Citation | 125 Wis. 650,104 N.W. 815 |
| Parties | MEANS v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Milwaukee County; A. C. Brazee, Judge.
Arthur L. Means was convicted of crime, and he brings error. Affirmed.Henry E. Bradley, for plaintiff in error.
L. M. Sturdevant, Atty. Gen., A. C. Titus, Asst. Atty. Gen., and Walter D. Corrigan, Asst. Atty. Gen., for the State.
The plaintiff in error was convicted of a crime against nature, under section 4591, Rev. St. 1898, committed by inducing a boy seven years of age to insert his male organ in the mouth of the plaintiff in error. Upon writ of error he claims that as the boy was incapable of penetration in the sense in which that word is used in rape, and incapable of emission, there was no crime under section 4591, but only an indecent assault under section 4591a, Rev. St. 1898.
We are unwilling to soil the pages of our reports with lengthened discussion of the loathsome subject. There is sufficient authority to sustain a conviction in such a case, and, if there were none, we should feel no hesitancy in placing an authority upon the books. The Queen v. Allen, 1 Den. C. C. 364; Kelly v. People, 192 Ill. 119, 61 N. E. 425.
It is said that the boy was an accomplice, and that no conviction can be sustained upon his uncorroborated evidence. Such is not the law in this state. It is in the discretion of the trial court whether to direct an acquittal or not. Black v. State, 59 Wis. 471, 18 N. W. 457;Porath v. State, 90 Wis. 527, 63 N. W. 1061, 48 Am. St. Rep. 954. Moreover, an accomplice is one who consents, and a boy of such tender years is not capable of legal consent, and hence is not an accomplice. Kelly v. People, supra; Mascolo v. Montesanto, 61 Conn. 50, 23 Atl. 714, 29 Am. St. Rep. 170.
Judgment affirmed.
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