State v. Cowing

Citation99 Minn. 123
Decision Date27 July 1906
Docket NumberNos. 14,825 - (28).,s. 14,825 - (28).
CourtSupreme Court of Minnesota (US)

Mathwig & Sasse, S. J. Abbott, and Lovely & Dunn, for appellant.

E. T. Young, Attorney General, J. E. Palmer, County Attorney, and E. C. Dean, for the State.


This is an appeal from an order denying a new trial. The defendant was convicted of the crime of rape and sentenced to nine and a half years' confinement at hard labor at the State Prison.

He was a farmer, forty nine years of age, and had a family of seven children, including his oldest son, twenty two years of age. He was never before accused of any crime, and had lived continuously for many years on a farm adjoining the farm of the father of the complaining witness. The houses were about three-quarters of a mile apart. Apart from some trouble with rheumatism, the defendant was a man of at least ordinary strength and weighed about one hundred sixty five pounds. The complaining witness was unmarried, twenty three years of age, had done the usual work of a girl on the farm, was about five feet tall, and weighed about one hundred pounds. The testimony, read in the light of the trial court's memorandum, tended to show, but not satisfactorily, that she had not the average mental endowment, nor ordinary physical strength, and that she had suffered from continued ill health. The complainant's version is that when she was in the kitchen defendant came in softly "and grabbed me with my arms tight back of me and said, `Lizzie, we are going to have some fun.' I said, `No, I don't want no fun,' dragging me. After I said I didn't want any fun, he grabbed me with both arms again. When he grabbed me the first time I was standing by the stove with my back toward the door. When he grabbed me the second time I was standing the same way. Then he jerked me around, my face to the east and my arms back of me, and grabbed me tight, dragging me out of the kitchen in through the door into the front room south of the kitchen. While he was dragging me I tried to fight and get away as hard as I could, and screamed and hollered as loud as I could. I said for him to leave me alone, let go of me, but he dragged me in farther and throwed me on the couch with my arms under me and throwed me on my hands. I don't know how large the couch is. Then he kicked his left knee below my chest and pressed me down, and grabbed with his left hand into my throat and choked me as hard as he could, and with his right hand he rushed up my clothes so quick, and then he had sexual intercourse with me. It caused me to flow blood all over my skirt. I see him when he got off me. There was blood on his right hand, across his fingers, and across the whole length of his hand. This intercourse caused me pain. My throat was sore, and I was lame all over. It caused me pain when he was doing this. My head ached. It hurt me at the time he was doing this hard, just as though some one was running a knife through me and tearing me all to pieces. I did not in any manner consent to that intercourse. I was not willing that he should have it with me. I tried just as hard as I could to get away. After he did this he went right off. When he got off my person he rushed his clothes right up quick with both hands and then went right out."

The defendant's version is that he drove to the house where the complaining witness lived, asked where her father was, and inquired if her father had left any money to pay for the threshing for which he owed the defendant. The witness came to the door, opened it, passed outside, and said she thought he was hard on them in more ways than one. When he asked her what she meant, she replied he knew well enough; that he and his wife had broken up the love match between her and the defendant's son Harry; and that if he and his wife had not interfered they would have been married some time ago. Defendant says he tried to reason with her, but that she grew angry and abused him, and threatened that she would get even if she had to injure herself. Defendant drove away while she continued gesticulating wildly and shouting in a violent manner. When he ascertained that a warrant had been issued for his arrest, he telephoned the sheriff that he would appear the next day. Accordingly he went to the county seat and surrendered himself to the sheriff, as he had agreed to. The testimony as to what happened at the time (Friday) is confined to the complaining witness and the defendant. The house was isolated, so that it might well have been that her outcries, if she made them, could not have been heard. There was no one else besides them in the house. Her father and sister returned in the afternoon, had dinner, remained a short time, left for some errands, and did not return until evening, and in the evening for the first time her sister learned what had happened.

Certain assignments of error on this appeal, directed to the rulings on evidence and the charge of the court, have been examined and found not sufficient to justify a reversal. They call for no particular reference beyond the expression of the opinion that a wide latitude should be allowed the defense, especially in the examination of the prosecutrix as to her narrative and as to her physical and mental condition, including her conduct upon the witness stand, and that the correctness of the court's charge as to the extent of resistance is very doubtful. The record fairly presents the merits of the controversy. The appeal is not one to be decided upon mere technicalities, but upon other assignments of error which question the sufficiency of the evidence to justify the conviction. The trial was conducted with manifest care and effort at fairness; the convicted man was well defended; the memorandum of the trial judge evidences deliberate and impartial consideration, and the record shows doubts as to many material matters which he could resolve better than an appellate tribunal dealing only with a mere printed record; the propriety of granting a new trial is not entirely clear. The conclusion, however, has been reached that to so order will conduce to the administration of justice because of the following three reasons:

1. The principal question presented by the record concerns the sufficiency of the testimony of the prosecutrix to show the degree of resistance to the assault charged which the law requires. That degree, in the nature of things difficult of determination, has been the subject of much legal controversy.

It is of course true that, if a female of the age of consent voluntarily permits intercourse, rape is not made out. Mere verbal unwillingness does not amount to want of consent, and may amount to invitation. The utmost reluctance accompanied by the utmost resistance is undoubtedly sufficient. Between these two extremes the authorities are not in harmony as to what degree of resistance is necessary. On the one hand, a series of cases requires extreme opposition. In State v. Burgdorf, 53 Mo. 65, after holding that proof of the utmost reluctance and the utmost resistance on the part of the female was essential to make out a rape, the court said: "The `passive policy,' or a mere halfway case, will not do." And see State v. Patrick, 107 Mo. 147, 17 S. W. 666. So in People v. Brown, 47 Cal. 447, 449, it was held that equivocal resistance not of a very decided character is insufficient. In Brown v. State, 127 Wis. 193, 106 N. W. 536, the rule is said to be "That in order to constitute a rape 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" and a persistence in such resistance until the offense is consummated. And see O'Boyle v. State, 100 Wis. 296, 75 N. W. 989. Other cases requiring the utmost reluctance, which are numerically greatest, and the utmost resistance, will be found collected in note 8 on page 860, 23 Am. & Eng. Enc. (2d Ed.).

On the other hand there are authorities which refuse to recognize opposition to this degree. Of these, the most conspicuous is State v. Shields, 45 Conn. 256. At page 264, Park, C. J., said: "While it may be expected in such cases from the nature of the crime that the utmost reluctance would be manifested, and the utmost resistance made which the circumstances of a particular case would allow, still, to hold as a matter of law that such manifestation and resistance are essential to the existence of the crime, so that the crime could not be committed if they were wanting, would be going farther than any well-considered case in criminal law has hitherto gone. Such manifestation and resistance may have been prevented by terror caused by threats of instant death, or by the exhibition of brutal force which made resistance utterly useless; and other causes may have prevented such extreme opposition and resistance as the request makes essential. The importance of resistance is simply to show two elements in the crime — carnal knowledge by force by one of the parties, and nonconsent thereto by the other. These are essential elements, and the jury must be fully satisfied of their existence in every case by the resistance of the complainant, if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the exhibition of brutal force. So far resistance by the complainant is important and necessary; but to make the crime hinge on the uttermost exertion the woman was physically capable of making would be a reproach to the law as well as to common sense."

In Com. v. McDonald, 110 Mass. 405, it was held that the following instruction of the trial judge was correct, namely: "The act of the defendant must have been without any consent on...

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