Rice v. State

• Decision Date: 07 February 1928
• Citation: 217 N.W. 697,195 Wis. 181
• Parties: RICE v. STATE.
• Court: Wisconsin Supreme Court

195 Wis. 181

217 N.W. 697

RICE

v.STATE.

Supreme Court of Wisconsin.

Feb. 7, 1928.

Error to review a judgment and sentence of the plaintiff in error rendered and entered in the Circuit Court for La Crosse County; R. S. Cowie, Circuit Judge.

Sherman Rice was convicted of taking indecent liberties with a girl, and he brings error. Reversed, with directions.--[By Editorial Staff.]R. A. Goodell, of Platteville, for plaintiff in error.

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and R. M. Orchard, Dist. Atty., of Lancaster, for the State.

CROWNHART, J.

On the 25th of August, 1926, the mother of Veronica Smith made complaint before a magistrate at Platteville, Grant county, Wis., that Sherman Rice, herein called the defendant, “did unlawfully and carnally know and abuse” her daughter on July 21st of that year. Defendant was arrested and was bound over to the circuit court for trial. There appears to have been an examination before the magistrate, at which Veronica Smith testified at length, although the testimony was not returned to this court and the docket entries of the magistrate are silent as to the fact. October 9, 1926, the district attorney filed an information against the defendant in the circuit court for Grant county, charging the defendant with the crime of rape on the girl on the 21st of July, 1926. On May 10, 1927, the district attorney filed an amended information charging the defendant on two counts with the crime of rape on July 3d, and again on July 21, 1926, and on a third count charging defendant with taking indecent liberties with the girl without intending to commit rape on each of the two dates mentioned in the first and second counts. And, finally, on the 11th of May, on the day of going to trial, the district attorney filed an information charging defendant with taking indecent liberties with the girl on July 3d and July 21, 1926, “with her consent and without intending to commit rape.”

The case was tried in La Crosse county on change of venue.

The girl was 12 years and 10 months of age when she claims the offenses were committed. She testified on the trial that she had known the defendant for several years; that on several occasions during that time he had put his hand on her privates, outside her clothes, each time in a more or less public place; that about the 3d day of July, 1926, about 3:30 p. m. of a clear, sunshiny day, defendant met her on the Main street in Platteville, and she went with him about three blocks away from the Main street along a public highway, to a point about 60 feet south of a creamery, and there, 6 feet from the highway, at the direction of the defendant, she took down her bloomers, lay down on her back, and defendant got on top of her and placed his privates next to hers; there was no copulation nor any attempt at penetration; her clothes were not soiled; in two or three minutes defendant got up and she did likewise; defendant then gave her $3, advised her to go, and she went back to the city and bought a pair of shoes with the money.

The girl further testified that on the 21st day of July, on a clear, sunshiny day, between 3 and 4 p. m., she again met the defendant on said Main street, and went with him to the same place as formerly, and again the same thing took place, in the same manner. At that time she said defendant gave her $1.25 with which she bought a pair of roller skates. The girl testified on direct examination that the defendant solicited her to go with him on July 2d, and on cross-examination she testified that on July 3d she walked up to defendant and told him if he would buy her a pair of shoes she “would let him do that.” She testified that where the offenses took place there were brush and weeds. There were no other witnesses to the facts on the part of the state.

The defendant at the time was 60 years of age, and for five years had been an engineer for the city of Platteville, at its waterworks. He was married, lived with his wife, and in the same home with his daughter and her husband. Close by lived his son and his wife. The defendant specifically denied every charge made by the girl. He very satisfactorily proved an alibi on July 3d, and on July 21st and 22d, and yet the jury found him guilty as of July 3d, and July 21st.

Dr. Wilson Cunningham, on the part of the defense, testified that the place along the highway where the girl testified the offenses occurred was an open, blue-grass pasture, entirely clear of weeds or brush. There was nothing to obscure a clear view from the creamery nearby, a garage at the head of the street a little more than a block away, a residence a little further down the street, and several other residences to the east nearby. The witness was very familiar with the location and swore that there were no weeds or brush or any cover of any kind along the highway for more than a tenth of a mile beyond the place in question. He also testified the highway was much traveled by farmers and autos, and that hundreds of children passed that way each day in summer to go to a swimming pool.

Before the trial the district attorney and defendant's counsel agreed that Dr. Cunningham, a recent president of the State Medical Society, who operated a hospital in Platteville, should examine the girl on behalf of the defendant, and that Dr. Andrew might examine her on behalf of the state. Dr. Cunningham made such an examination and testified that he found the girl mentally abnormal, “of a perverted mind with a depraved mental condition,” and “passing through a stage, which frequently occurs in young girls, of imagination, which is sometimes carried entirely beyond facts and conditions.” Dr. Andrew was not called as a witness, and the testimony of Dr. Cunningham stands uncontradicted. It appears that on the examination and on the trial the girl claimed that a prominent merchant of Platteville had performed the same act in the same way with her when she was 8 years old.

The girl did not tell her mother about the offenses until August 24th following, and it will be remembered that the complaint sworn to by the mother on August 25th was for rape. The girl on the examination fixed the dates with particularity by reference to other facts. On the trial she fixed the date of July 3d because she had just come from her attendance at “Sunday school,” or instruction in catechism, which was on Saturday, July 3d. The girl had lived a rather abnormal life. Her father died when she was very young. Her mother had been afflicted with tuberculosis, and during 1925 the child had been in an orphanage while her mother was in the sanatorium at Wales.

This case is shrouded in mystery. There is no corroboration of the girl's testimony in any material particular whatever. The circumstances of a married man with a family, 60 years of age, taking this young girl, on a bright, sunshiny day, in the middle of the afternoon, along a much-traveled public highway, and then at a point in plain view of many houses committing such an unnatural and revolting act, taxes our credulity. That such an act should take place once without discovery is highly improbable, but twice in the identical place, time of day, and manner, and without some witness, seems quite...