State v. Hoffman

• Decision Date: 21 June 1938
• Citation: 280 N.W. 357,228 Wis. 235
• Parties: STATE v. HOFFMAN.
• Court: Wisconsin Supreme Court

228 Wis. 235

280 N.W. 357

STATE

v.HOFFMAN.

Supreme Court of Wisconsin.

June 21, 1938.

Appeal from a judgment of the Municipal Court of the City of Oshkosh and the County of Winnebago; Henry P. Hughes, Judge.

Reversed.

The amended information in substance charged that on July 16, 1937, at the town of Algoma, in the county of Winnebago, Victor Hoffman, did wilfully, unlawfully and feloniously ravish and carnally know G_____ A_____, a female over the age of sixteen years. The information contained other counts which charged assault with intent to commit the crime of rape, fornication, and assault and battery. Trial was had to the court and a jury on August 13 and 14, 1937. The court submitted to the jury only three counts which charged rape and fornication. The jury by its verdict found the defendant guilty of the crime of rape. After the coming in of the verdict, the defendant moved in arrest of judgment, that he be discharged notwithstanding the verdict, for the reason that the verdict is contrary to the law and contrary to the evidence, and in the alternative, that the verdict be set aside and a new trial granted on the ground that the verdict, if permitted to stand, would result in a miscarriage of justice. The trial court denied the defendant's motion, adjudged him guilty of the crime of rape and thereupon sentenced him to an indeterminate term of not less than one year and not more than ten years in the Wisconsin state prison. From the judgment and sentence entered August 25, 1937, the defendant appealed.

FOWLER, FRITZ, and FAIRCHILD, JJ., dissenting.

Barber, Keefe, Patri & Stillman, of Oshkosh, for appellant.

Orland S. Loomis, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Lewis C. Magnusen, Dist. Atty., of Oshkosh, for respondent.

NELSON, Justice.

The crime of which the defendant was convicted is one of the most serious known to the law. This court, ever since Conners v. State, 47 Wis. 523, 2 N.W. 1143, has consistently adhered to a strict rule as to the proof required in such cases. Whittaker v. State, 50 Wis. 518, 7 N.W. 431, 36 Am. Rep. 856;Bohlmann v. State, 98 Wis. 617, 74 N.W. 343;O'Boyle v. State, 100 Wis. 296, 75 N.W. 989;Devoy v. State, 122 Wis. 148, 99 N.W. 455;Brown v. State, 127 Wis. 193, 16 N.W. 536, 7 Ann.Cas. 258;McLain v. State, 159 Wis. 204, 149 N.W. 771;B_____ v. State, 166 Wis. 525, 166 N.W. 32;Purpero v. State, 190 Wis. 363, 208 N.W. 475;Starr v. State, 205 Wis. 310, 237 N.W. 96.

In Conners v. State, supra, it was said in discussing the charge of the trial court (page 1147):

“It did not press upon their attention the principle or rule that voluntary submission by the woman, while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape. The jury were not expressly told that if the carnal knowledge was with the voluntary consent of the woman, no matter how tardily given, or how much force had been theretofore employed, it is no rape.”

[1] In Devoy v. State, supra, it was said (page 456):

“The ingredient which gives the offense its atrocious character is the violation of the woman's person under circumstances while exerting the utmost power in protection of herself. Utmost reluctance must be shown, and it must also appear that she availed herself of every reasonable opportunity to make the utmost resistance in repelling the assailant and preventing him from accomplishing his purpose. Under the circumstances of such an attack, a passive demeanor on her part is not sufficient to show utmost resistance, if she was sufficiently possessed of her mental faculties to apprehend her danger and to control her physical powers in her defense.”

In Brown v. State, supra, the law was thus stated (page 538):

“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 the penetration of her person, and this must be shown to persist until the offense is consummated. We need not mention the exception where the power of resistance is overcome by unconsciousness, threats, or exhaustion. ***

“Further, it is settled in this state that no mere general statements of the prosecutrix, involving her conclusions, that she did her utmost and the like, will suffice to establish this essential fact, but she must relate the very acts done, in order that the jury and the court may judge whether any were omitted.”

In McLain v. State, supra, the rule was thus reiterated:

“It is undoubtedly true, as claimed by the defendant, that in order to constitute the crime of rape there must not only be the entire absence of consent, but there must be the utmost resistance by the woman by all means within her power. ***

“It must be remembered that the term ‘utmost resistance’ is a relative rather than a positive term. What would be ‘utmost resistance’ on the part of a weak and nervous person, with a temperament easily frightened, might be the veriest sham on the part of a robust person in good health, whose nerves and courage are normal.”

[2] The rule thus firmly established is of course subject to the exception that the power to resist may be overcome by threats which reasonably induce in the mind of the woman an overmastering fear. In such cases, resistance to the utmost of her physical powers is not required. In O'Boyle v. State, supra, it was said (page 991):

“To authorize a conviction for rape, the jury must believe that the offense was accomplished by force, and against the will of the prosecutrix, and that there was the utmost reluctance and resistance on her part, or that her will was overcome by force or fear of the defendant.”

In Loescher v. State, 142 Wis. 260, 125 N. W. 459, it was said (page 460):

“In order to constitute the crime of rape, the evidence must show that the act was committed by force and against the will of the female; but where the female is rendered insensible through fright, or ceases resistance under fear of death or great bodily harm, the consummated act is rape. ***

“‘A consent from fear of personal violence is void; and though a man lays no hands on a woman, yet if by any array of physical force he so overpowers her that she dares not resist, his carnal intercourse with her is rape.’ This court has often recognized the rule that, where the will of the woman is overcome by threats of great personal injury, there is no consent.”

In Bohlmann v. State, supra, appears the following language (page 344):

“The power of resistance need not necessarily be overcome by superior physical force; if overcome by fraud or fear or serious personal injury, or if physical resistance becomes so useless as to warrant its ceasing upon that ground, there being no consent or submission in the sense of mental operation, the essential of the accomplishment of the act by force and against the will of the outraged party, is fully satisfied. The law as thus laid down is too well understood and has been too frequently applied in this court to require discussion or call for any citation of authority.”

In Showalter v. State, 148 Wis. 450, 134 N.W. 830, the following instruction was approved (page 832):

“‘To constitute rape, the connection must be against her will, and there must be the utmost reluctance and resistance on her part, or her will must be overcome by fear and terror so extreme as to preclude resistance.”’

In commenting upon the evidence in that case the court said:

“It is manifest from her evidence that her physical powers had then been exhausted by reason of the prolonged struggle to the point of incapacitating her to effectually resist his attack, and that she was then so terrified in mind as to be well nigh incapable of continuing her resistance to repel him.”

[3] 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 nigh 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. With this review of the law, we may now proceed to discuss the contentions of the defendant in connection with the proven facts.

The defendant contends that the court erred in refusing to discharge him for the reason that the verdict was contrary to the law and the evidence and for the reason that the evidence adduced in support of the charge was insufficient to sustain a conviction of rape. The defendant further contends that the court erred in refusing to set aside the verdict and grant him a new trial because the verdict, if permitted to stand, will result in a miscarriage of justice.

[4] On July 16, 1937, the complaining witness, a registered nurse of several years experience, was nearly twenty-six years of age and employed at a local hospital in the city of Oshkosh. She weighed about ninety-eight pounds. The defendant was twenty-six years of age and weighed one hundred fifty pounds. At about nine o'clock in the evening of July 15, 1937, the complaining witness and a girl friend, Charlotte Sontoski, were walking north on Main street in the city of Oshkosh, intending shortly to turn east onto Merritt street and walk to the nurses' home where the former resided. They met the defendant and one Bauer, both of whom were acquainted with Miss Sontoski but neither with the complaining witness. After a brief conversation, the young ladies proceeded on their way. The defendant and Bauer got into the defendant's automobile, which was parked near by, and shortly thereafter encountered the two girls at the intersection of Jefferson and Merritt streets. The young men invited the two girls to get into the automobile and offered...