State v. Waters
| Citation | 135 N.W.2d 768,28 Wis.2d 148 |
| Parties | STATE of Wisconsin, Appellant, v. Dalwyn W. WATERS, Respondent. STATE of Wisconsin, Appellant, v. Paul John PLICHTA, Respondent. |
| Decision Date | 25 June 1965 |
| Court | United States State Supreme Court of Wisconsin |
Bronson C. La Follette, Atty. Gen., Madison, William A. Platz and Betty R. Brown, Asst. Attys. Gen., Roger P. Murphy, Dist. Atty., Waukesha, for appellant.
A. Warren Cahill, Robert T. McGraw, Waukesha, for respondents.
Three issues are presented on this appeal:
1. In reversing the order of the county court, did the circuit court exceed the proper scope of review?
2. Did the evidence establish respondents' guilt beyond a reasonable doubt?
3. Did the trial court abuse its discretion in not ordering a new trial?
This appeal presents the court with its first opportunity to consider sec. 957.255, Stats., which became effective in 1962, 1 and which provides in part:
'(2) If a new trial is denied an appeal may be taken therefrom to the circuit court within 15 days of the date of such denial, and said circuit court may review the order refusing a new trial and if reversed and the crime involved is a felony then the circuit court may order a new trial to be had in said circuit court, * * *.'
The decision of the circuit court neither declares that the evidence was insufficient to prove respondents' guilt beyond a reasonable doubt nor that the trial court abused its discretion in not granting a new trial. It appears from a reading of the decision that the circuit court reviewed the record and concluded, de novo, that 'the facts are not as a matter of law sufficient to constitute the crime of rape.' Relying on In re Johnson, 2 the state contends that the circuit court erroneously reversed the trial court order denying new trials in that it improperly assumed a fact-finding function and improperly substituted its discretion for that of the trial court.
Johnson involved a construction of sec. 48.47, Stats., which permitted anyone aggrieved by an adjudication of the juvenile court to appeal to the circuit court of the same county. In concluding that the circuit court did not have the authority to review the record and come to an independent conclusion, this court said:
'Ordinarily, in Wisconsin, an appellate court does not have the power to decide questions of fact as an original proposition upon its review of the record.
'In a trial to the court findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence.' Citing cases. Swazee v. Lee, 1951, 259 Wis. 136, 137, 47 N.W.2d 733.
'It has been held that upon appeal from the civil court to the circuit court for Milwaukee county, the findings have the same status as findings of the circuit court have upon appeal to the supreme court.
Citing cases. Foster v. Bauer, 1921, 173 Wis. 231, 234, 180 N.W. 817, 818.' 3
By way of explanation the court stated:
'This limitation upon the scope of review must rest, in part at least, upon a recognition that the trier of the fact who saw and heard the witnesses is in a better position to determine credibility and weight of evidence than a court which merely reads the transcript of the testimony.' 4
Although the present case is a criminal matter, while Johnson was a civil case, the underlying rationale of Johnson in regard to scope of review should control if for no other reason than that the same problems of credibility exist.
In addition to incorrectly deciding the case as an original proposition based on a review of the trial record, the circuit court erred in ordering a new trial in the interests of justice. This is because under the provisions of sec. 957.255(2), Stats., the circuit court does not have the authority, as does this court on review 5 or the trial court after the trial, 6 to order a new trial in the interests of justice. The authority in each instance is vested by precise statute and in the absence of express language in sec. 957.255(2) authorizing the reviewing circuit court to order a new trial in the interests of justice, we find no such authority by implication. The trial court had refused to grant a new trial on that ground, and this was error only if there was an abuse of discretion. 7 As the court said in In re Johnson:
8
Thus, as pointed out in Johnson, the questions properly before the circuit court should be the same as are before this court at the present time, i. e., whether the evidence was sufficient to prove the defendants' guilt beyond a reasonable doubt and whether the trial court abused its discretion in not granting a new trial. 9
On a criminal appeal, the conviction will not be upset if the 'evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt." 10 The same rule applies when the court is the trier of fact. 11
In Wisconsin, '[a]ny male who has sexual intercourse with a female he knows is not his wife, by force and against her will' is guilty of rape. 12 The phrase 'by force and against her will' is defined by statute as meaning '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.' 13 Cases construing the 'utmost resistance' requirement have been well digested in State v. Hoffman, 14 and a complete reiteration will serve no good purpose here. Suffice it to say that in general, resistance must persist until the act is consummated; 15 voluntary submission--no matter how reluctant--by a female who is still able to resist removes from the act an essential element of the crime. 16 However, it is recognized that the term 'utmost resistance' is a relative rather than a positive term, 17 and what amounts to 'utmost resistance' depends on the particular victim and the particular circumstances. 18 Application of the general rule and the caveat was explained as follows:
19
The strict physical-resistance requirement is relaxed somewhat if it would be useless to resist. 20 In Bohlmann v. State it was held:
'The power of resistance need not necessarily be overcome by superior physical force; if overcome by fraud or fear of serious personal injury, or if physical resistance becomes so useless as to warrant it 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.' 21
The pertinent facts are these: On Saturday, June 20, 1964, L _____ and S _____ a friend who was staying with her while L_____'s parents were out of town, went shopping in downtown Milwaukee. L_____ was sixteen years old at the time. At approximately 6:30 p. m., the respondents Waters and Plichta met the girls and asked them whether they wanted a ride. L_____ recognized respondent Waters, and the girls accepted. After driving around for a short time the respondents asked the girls if they would like to go to a party in Grant Park. L_____ knew some of the people who were supposed to be there. The four ate at a restaurant and then picked up a third girl, C_____. Around 8:30 the respondents dropped S_____ off at L_____'s home, bought a six-pack of beer and some grape juice, and drove to Grant Park. There the couples necked and drank for about two hours although L_____ testified that she poured most of the two drinks she had out on the ground. They left Grant Park and drove around for awhile and took C_____ home. The time was between 1:00 and 2:30 a. m. The respondents then told L_____ that they wished to stop at another girl's house and began driving out of town. L_____ asked to be taken home and Waters, who was driving, told her to 'shut up.' She was seated in the front seat between the respondents. Waters finally stopped the car on a...
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Dumer v. State
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