State v. Herfel
| Decision Date | 05 January 1971 |
| Docket Number | No. S,S |
| Citation | 182 N.W.2d 232,49 Wis.2d 513 |
| Parties | STATE of Wisconsin, Respondent, v. Emmett John HERFEL, Appellant. tate 38. |
| Court | Wisconsin Supreme Court |
On May 6, 1969, Emmett John Herfel was convicted of rape (sec. 944.01(1), Stats.) at a jury trial at which Circuit Judge Norris E. Maloney presided and was committed by him to the state department of public welfare for a presentence social, physical, and mental examination. Shortly thereafter, Judge Maloney was hospitalized and a motion for a new trial was filed. Circuit Judge William C. Sachtjen was assigned to hear the motion and to complete the case. The motion for a new trial was denied. The presentence report showed Herfel was not in need of psychiatric treatment as a sex deviate and Judge Sachtjen sentenced him on the judgment of conviction to an indeterminate term of not more than 10 years in prison.
Ross, Stevens, Pick & Ross, Madison, for appellant.
Robert W. Warren, Atty. Gen., Mary V. Bowman, Asst. Atty. Gen., Madison, for respondent.
Herfel raises four issues on appeal: (1) Whether there was sufficient credible evidence to sustain the jury's verdict of guilty (2) whether it was error for a successor judge to hear and determine his motion for a new trial, (3) whether he should have been granted a new trial on the basis of newly discovered evidence, and (4) whether he should be granted a new trial in the interests of justice.
Sufficiency of the Evidence.
The facts are in sharp dispute and the determination of guilt depended upon whether the jury believed the complaining witness, a young married woman. We think the jury could find beyond a reasonable doubt that Herfel was guilty of rape and a detail of the facts will not be necessary.
The complaining witness needed her car repaired and on September 26, 1969, she visited Nordness Used Car Lot in Madison. She had spent the two previous days unsuccessfully in an attempt to either find a part or to have the car fixed at the lot. On this day Herfel told her he knew where she could get a part if she came with him. After several stops, including a tavern and a garage, Herfel took her to his home. She claimed Herfel wanted to make a call to locate the auto part; Herfel denied it. According to the complaining witness after they entered the house, Herfel announced they were going to bed and threatened her with a gun, placing it to her head. He led her to a bedroom, partly unclothed her and had intercourse. She testified rapes, i.e., the possibility of women experiencing or resist and thought the calmer she stayed the better off she would be. She was afraid Herfel would shoot her. She also testified that after the act Herfel threatened that he would kill her if she told the police.
According to Herfel, the complaining witness came willingly into the house and consented to the intercourse. He admits having a gun and placing it on the dresser in the bedroom.
After the incident the complaning witness returned to the Nordness lot with Herfel who stopped along the way for gas. After leaving the lot and before reporting the incident, she went to a savings and loan association and deposited a large sum of money, which she had with her; inquired about a private detective agency, and finally reported the incident to the police, who took her to a hospital where she was examined by a Dr. Keepman. After the trial, Dr. Keepman went to Herfel's trial counsel and told him of his examination of the complaining witness. The doctor's affidavit furnished the basis for the motion for a new trial on the ground of newly discovered evidence.
Rape is defined in sec. 944.01(1), Stats., as intercourse with a woman other than one's wife 'by force and against her will,' which term is defined in sec. 944.01(2) as 'either that her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm.' Since Herfel admits having intercourse and the complaining witness' resistance was neither her utmost nor prevented by physical violence, and because the threat of using a gun constitutes a threat of imminent physical violence, the precise question is whether her will to resist was overcome by the threat of Herfel to use the gun to carry out his intention.
We are cautioned by Herfel that policy considerations should make the proof of rape difficult to prevent 'after thought' rapes, i.e., the posibility of women experiencing an unpleasant sex experience being motivated to 'get even' and making a claim of being raped. Because of the difficulty of proving a defense, it is argued the 'utmost resistance' doctrine in Brown v. State (1906), 127 Wis. 193, 106 N.W. 536, should be strictly observed. But we pointed out in State v. Schmear (1965), 28 Wis.2d 126, 130, 135 N.W.2d 842, that the rigidity and strictness of Brown had been eroded and the term 'utmost resistance' was a relative term and that the law did not require the useless to be done. We also pointed out the standard of Brown had been modified and softened in McLain v. State (1914), 159 Wis. 204, 149 N.W. 771.
The doctrine requiring utmost resistance applies only to a woman's counteration to the physical force asserted by the man to commit the act of intercourse and is not applicable to the facts before us. There is no statutory test to determine the status of the complaining witness' will. Common sense and the experience of mankind must be used to determine when a person's will is overcome by threats of imminent physical violence which if carried out would cause great bodily harm. Herfel confuses the necessity to prove nonconsent by fighting to the utmost the physical force to commit the act of intercourse with the test to determine how much physical resistance, if any, is required in the face of threats of physical violence and personal harm to prove the will was overcome.
Herfel argues the complaining witness did not exhibit sufficient fear to prove her will was overcome and she did not test the sincerity of Herfel's threat by any significant resistance. Herfel only meansures the degree of fear which overcomes the will not to consent by the cases in which the victim was physically abused or was rendered hysterical, incoherent, or otherwise deranged by the threatening violation of her person, and suggests that any woman rational enough to consciously elect not to resist unwanted intercourse is not frightened enough to meet Wisconsin's standard.
Reliance is placed on State v. Hoffman (1938), 228 Wis. 235, 280 N.W. 357, for the proposition the threat must be such as to induce in the mind of a woman 'an overmastering fear,'--a fear so great as to terrify her and render her practically incapable of resistance. In Hoffman, at p. 240, 280 N.W. at p. 359, the court summarized the law as it stood at that time as follows:
'It therefore clearly appears that 'the fear' which renders the utmost resistance unnecessary is a 'fear of death or great bodily harm,' a 'fear of great personal injury,' or 'serious personal injury,' a fear that 'so overpowers her that she dares not resist,' a fear and terror so extreme as to preclude resistance,' a fear which renders her mind 'well night incapable of continuing her resistance to repel him.' The fear therefore must not only be real but so great as to terrify her and render her practically incapable of resistance.'
The test of whether a woman's will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm is subjective and it need not be expressed in terms of fear and incapability to resist in every case. Some women may respond to the threat of gunpoint without great fear or being rendered incapable of resisting. Resistance may be completely and imminently dangerous. In such a situation, fear or terror not to resist as an expression of nonconsent may be supplanted by a strong motivation or belief which induces the choice to submit. The choice under such conditions, while philosophically a choice, is legally unfair and is legally no choice; it does not constitute legal consent. Resistance, or the lack of resistance, as such is not the central issue in rape. It is only some evidence of whether the woman's will to resist is overcome under the circumstances and this question depends upon other factors. The threat of each or serious personal injury by use of a gun may be reason enough not to resist and to overcome the will within the meaning of this section in defining the crime of rape. The...
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