State v. Hoffman
| Citation | 240 Wis. 142,2 N.W.2d 707 |
| Parties | STATE v. HOFFMAN. |
| Decision Date | 10 March 1942 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Waushara County; Herman J. Severson, Judge.
Affirmed.
This action was begun on the 31st day of May, 1941, by the State of Wisconsin, plaintiff, against Victor Hoffman, defendant, who was charged with having taken improper liberties with a minor on April 28, 1941. There was a preliminary examination. He was bound over to the circuit court for trial and on September 22, 1941, an information was filed charging the defendant with having on the 28th day of April, 1941, taken indecent and improper liberties with the person of Mildred Hardel, a female under the age of sixteen years, without intending to commit rape on such female, in violation of sec. 351.34, Wisconsin Stats. There was a trial, the jury found the defendant guilty and the defendant was sentenced to confinement in state's prison at Waupun, for the term of not less than one year nor more than eighteen months. From the judgment and sentence of the circuit court, the defendant appeals.
The facts will be stated in the opinion.
Charles A. Barnard, of Oshkosh (J. E. O'Brien, of Fond du Lac, of counsel), for appellant.
John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Samuel Bluthe, Dist. Atty., of Wautoma, for respondent.
On April 28, 1941, Mildred Hardel, a girl thirteen years of age, at the time in the eighth grade, went into the school yard for the purpose of taking down the flag. The defendant, a married man thirty-one years old, drove past the school, stopped, backed up and drove into the school yard. The jury having found the defendant guilty, we state the facts which appear in the evidence and tend to support the jury's findings. He called to Mildred, inquired whether she was the teacher. She told him she was not. The defendant then asked Mildred her name and how old she was. He slid over to the right side of the car toward Mildred, rolled the car window down. She says and he admits that he asked her to go for a ride. He engaged her in conversation and wanted to guess her weight and told her to step closer to the car, which she did, stepping up to the running board. He then put his hands through the car window and with the palms of his hands felt of her breasts with an up and down motion but without pressure for a period of about five seconds. The defendant denied touching her breasts but testified that he only put his hand on her shoulder for the purpose of guessing her weight. Mildred ran to the school house and as she was running the defendant said “Hey come back here”, but she did not answer him or stop. She told the teacher, Miss Wenge, that there was a man out in the yard after her. The teacher went to the door and talked to the defendant who was standing on the porch. There is no substantialdisagreement between Miss Wenge and the defendant as to what then took place. The defendant asked her about a Rice or a Tice School. She told him there was a Rice School near Wild Rose but she had never heard of a Tice School. He then inquired whether she knew the name of the teacher. He claimed he was looking for the school being taught by Miss Cartwright. He then asked Miss Wenge what she did for excitement. He mentioned dancing and asked if she ever went to dances near Appleton or Oshkosh. He then asked her if she would go with him if he came after her some night and she said “No, I was going with someone”. “He also asked me if I would ride home with him that night and I said I was going with a girl friend.” The defendant appeared nervous and excited to Miss Wenge. After he left she returned to the school room. Mildred told her the defendant had felt of her but refused to say where. About fifteen minutes later they went to Mildred's home in a car driven by a girl friend of the teacher. After the teacher and her friend left Mildred told her mother what had happened. Upon the trial the mother was permitted to testify as to what was told her.
On May 23, 1941, the defendant, accompanied by his wife and mother-in-law, called at the Hardel home with the intention of making a settlement of the case. Mr. Hardel told him he could not make settlement and that the case was in the hands of the district attorney and he would have to see him. It was understood that Hardel would see the district attorney about it. Hardel saw the district attorney and was told that a settlement could not be made. A few days later the defendant called again and was so informed.
Section 351.34, under which the defendant was prosecuted, provides: “Any male person over the age of eighteen years who shall take indecent or improper liberties with the person of a female under the age of sixteen years, with or without her consent, without intending to commit rape on such female, shall be punished” etc.
The defendant contends that the evidence produced by the state is insufficient to support a conviction for taking indecent and improper liberties, relying upon Rice v. State, 1928, 195 Wis. 181, 217 N.W. 697. The facts in this case in no way parallel the facts in the Rice case except that the prosecution in each case was under the same section of the statute.
The terms “indecent assault” and “indecent liberties” are convertible. State v. West, 1888, 39 Minn. 321, 40 N.W. 249,State v. Flath, 1930, 59 N.D. 121, 228 N.W. 847,State v. Waid, 1937, 92 Utah 297, 67 P.2d 647.
It has been said that the term “indecent liberties” when used with reference to a woman, old or young, is self-defining. State v. Stuhr, 1939, 1 Wash.2d 521, 96 P.2d 479.
In a particular case whether the conduct complained of amounts to the taking of indecent liberties is largely a question for the jury. It was said in State v. Flath, supra, “Indecent liberties mean ‘such liberties as the common sense of society would regard as indecent and improper,”’ and “the liberty taken may be indecent even if consented to by one capable of giving consent, yet not punishable by statute, as the term is one of propriety, differing with the age, code of morals, and generally accepted standards of society.” [59 N.D. 121,228 N.W. 852].
These are matters which do not permit of precise definition or exact delimitation. “Indecency” is one thing in one generation and something else in another. It is a matter of common knowledge that fifty years ago a woman dressed in a style which now causes no comment would not have dared to frequent a public place. Had she done so she would have undoubtedly been charged with indecent exposure. In that day illustrated advertisements now common in journals of wide circulation would not have been allowed in the mails. A jury in determining what constitutes indecent liberties is confronted with a problem analogous to that of a jury required to find what constitutes ordinary care or what is the conduct of a reasonable person or what constitutes reasonable time or to make other findings which are dependent upon contemporaneous standards and codes. No doubt the jury in this case was impressed by the very unusual conduct of the defendant. He was a stranger to Mildred and Miss Wenge. By his own admission he saw a person taking down the flag. Apparently, judging from his questions he thought the flag was being taken down by the teacher of the school. When he discovered that the person taking the flag down was a pupil, a young girl thirteen years of age, he first, as he says, attempted to judge her weight, found it necessary to touch her person to do that, and then tried to induce her to ride with him. After she ran into the school house he apparently thought it wiser to put up a bold front and call on the teacher. When the teacher came to the door he proceeded to make proposals to her which certainly were not of a kind ordinarily made by a perfect stranger to a young woman. His conduct on this occasion was certainly quite out of the ordinary and the jury might well have thought it indicative of some abnormality which led him to approach women who were perfect strangers to him. While what was done by the defendant might under some circumstances seem to verge on the trivial, when all the facts are taken into consideration, it must be held that the evidence sustains the findings of the jury.
The defendant further contends that the court was in error in permitting the teacher and the mother to testify as to what Mildred told them. The mother, Lona Hardel, was asked the following questions:
“By Mr. Barnard: So I will not make constant objections, I would like to have the record show that I object to all of this.
...
To continue reading
Request your trial
-
State v. Friedrich
...overruled will be effective only to the extent of the ground specified.' " Id. at 152, 287 N.W.2d 791, quoting State v. Hoffman, 240 Wis. 142, 152, 2 N.W.2d 707 (1942). In State v. Becker, 51 Wis.2d 659, 188 N.W.2d 449 (1971), this court faced an issue similar to the issue raised in Haskins......
-
State v. Agnello
...810 (1981). "The cardinal principle is that a general objection if overruled cannot avail the objector on appeal." State v. Hoffman, 240 Wis. 142, 151, 2 N.W.2d 707 (1942). See also Holmes v. State, 76 Wis.2d 259, 271, 251 N.W.2d 56 (1977); Peters, 166 Wis.2d at 174, 479 N.W.2d 198. An obje......
-
State v. Wedgeworth
...251 N.W.2d 56 (1977). See also: State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 602-03, 215 N.W.2d 390 (1974); State v. Hoffman, 240 Wis. 142, 149-50, 2 N.W.2d 707 (1942). The trial court should not be placed in a situation in which, having made an evidentiary ruling on grounds not in the......
-
Holmes v. State
...62 Wis.2d 577, 602, 603, 215 N.W.2d 390 (1974); Champlain v. State, 53 Wis.2d 751, 758, 193 N.W.2d 868 (1972); State v. Hoffman, 240 Wis. 142, 149, 150, 2 N.W.2d 707 (1942); State ex rel. Swenson v. Norton, 46 Wis. 332, 337, 338, 1 N.W. 22 Defense counsel was present during the testimony of......