Vogel v. State

Decision Date05 January 1909
Citation138 Wis. 315,119 N.W. 190
CourtWisconsin Supreme Court
PartiesVOGEL ET AL. v. STATE.

OPINION TEXT STARTS HERE

Error to Circuit Court, Clark County; Chester A. Fowler, Judge.

Mattie Vogel and others were convicted of rape, and they bring error. Affirmed.

Writ of error to review conviction for rape and 10 years' sentence to the state reformatory. The defendants were jointly arraigned upon an information containing one count, which, omitting the formal parts, alleges as follows: “That on the 29th day of June, A. D. 1907, at said county, Matthew Vogel, Joseph Christman, Peter Christman, Anthony J. Christman, and Henry Vogel, did, with force and arms, in and upon one Anna Engelbretson, of the age of 14 years and more, to wit, of the age of 18 years, violently and feloniously make an assault, and her, the said Anna Engelbretson, then and there by force, and against her will, violently and feloniously did ravish and carnally know, against the peace and dignity of the state of Wisconsin.” All of the parties involved attended a dance held at John Lempke's barn on the night of June 29th. About 11 o'clock the prosecutrix and another girl went to Lempke's house to get a drink of water, and on their return the prosecutrix was accosted by the defendant Matthew Vogel. The testimony of the prosecutrix is to the effect that said Vogel forcibly took her out of the yard and down the road to a clump of small trees on the roadside, some 24 rods from the gate leading to the Lempke barn; that the other defendants followed them, and that all of the defendants had sexual intercourse with the prosecutrix, forcibly and against her will, at said place; that she was thereafter taken down the road some 500 feet further by the defendants, where they again committed the crime of rape upon her; that thereafter she was brought back to the place where the first alleged crime, or series of crimes, was committed, and the offense was repeated until the defendants were driven away by other parties appearing upon the scene. The plaintiffs in error, who will hereafter, for the sake of brevity, be referred to as defendants, seek a reversal of the judgment of conviction on the following grounds: (1) The evidence is insufficient to support a conviction for the crime of rape; (2) the jury which tried the defendants was not legally impaneled; (3) the information was insufficient to support a judgment for conviction; (4) the court erred in charging the jury; (5) the court erred in refusing to charge the jury as requested by defendants; (6) the court erred in receiving and rejecting evidence to the prejudice of the defendants; (7) the judgment should be reversed because of prejudicial remarks made to the jury by the district attorney in the argument of the case.

Dodge, J., dissenting.L. M. Sturdevant, R. J. McBride, H. C. Clark, and W. J. Rush, for plaintiffs in error.

F. L. Gilbert, Atty. Gen., F. T. Tucker, Asst. Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

BARNES, J. (after stating the facts as above).

We are urged with much earnestness to hold that the evidence is insufficient to sustain a verdict of guilty, and that therefore the judgment of conviction should be reversed and the defendants discharged. Many considerations are called to our attention to support this view, and some of them are not wanting in force and persuasive power. The credibility of the testimony of the alleged victim, as well as that of the principal witnesses tending to corroborate her story, is vigorously assailed. It is asserted that the condition of the clothing of the girl, Anna Engelbretson, after the commission of the alleged crime or crimes, and the condition of her body, demonstrated that she was not the victim of a series of criminal assaults. Her failure to promptly acquaint her parents, or other relatives, of the outrage, her alleged failure to make such outcries as might, and probably would, attract assistance, and the inherent improbability of at least a portion of her testimony are said to furnish proof conclusive that the lesser offense of fornication only was committed. These, as well as other considerations, are forcefully pressed upon us with undoubted sincerity. The abhorrent nature of the crime of rape so shocks every sensibility of manhood that a party even charged therewith has much to overcome where his defense is that the offense amounted to fornication only, and not to the more heinous crime. As was said in Brown v. State, 127 Wis. 193, 199, 106 N. W. 536, “the proneness of woman, when she finds the fact of her disgrace discovered or likely of discovery, to minimize her fault by asserting vis major,” coupled with the impossibility of defense except by direct denial, has led the courts to a very strict rule of proof in such cases. Five defendants were convicted on the trial of this case, and are now under sentence for 10 years each. The import as well as the importance of the case is such as to invite the closest scrutiny of the record, to the end that the court may satisfy itself therefrom, as far as it can, whether the defendants were convicted of a crime they did not commit.

It is easy to perceive that the real issue in the case might readily have been lost sight of by the jury. The testimony of the defendants is less repulsive than that of their victim, because the element of force is denied; but, taking their testimony as they gave it, a person not learned in the refinements of the law might well feel inclined to say that a prison was the proper place in which to restrain their activities. The evidence given on the trial certainly makes a revolting, if not an unique, page in the annals of criminal law. We fail to see where any detailed discussion of the evidence would be useful, except for the purpose of convincing counsel that it was carefully read and considered by the court, and except, perhaps, to gratify the appetites of morbid minds for salacious reading matter. Neither reason is sufficient, and we must decline to unnecessarily soil the pages of our reports by narrating the evidence in detail. “Ordinarily the decision of the trial judge upon the question of granting a new trial on the ground that the evidence is insufficient to support the verdict is held conclusive upon this court; and this rule is adhered to in a criminal case, where the record contains evidence from which the guilt of the accused can be fairly deduced.” Williams v. State, 61 Wis. 281, 289, 21 N. W. 56;Jambor v. State, 75 Wis. 664, 673, 44 N. W. 963. Having in mind the foregoing rule of law as to the weight that should be given to the verdict of a jury in a criminal case, and also to the refusal of the trial court to set it aside as not supported by the evidence, it is the judgment of every member of the court, reached after mature deliberation, that the verdict should not be set aside as unsupported by the testimony.

The jury found that, at the time of the commission of the offense, Anna Engelbretson was not a common prostitute. Upon the evidence it was entirely justified in so doing. With one exception the only witnesses who testified to former misconduct on her part, or to evil reputation, were three of the defendants, and a portion at least of their evidence was almost too fantastic for belief. The evidence of the witness Edward Wensel is improbable, though perhaps not incredible, but was in direct conflict with statements deliberately made by him to the district attorney and sheriff. He was evidently a companion of Mattie Vogel's, having worked with him in the woods, and according to his own story, accompanied him on at least one of his amatory peregrinations. The evidence referred to was important only as bearing upon the credibility of the witness Anna Engelbretson. It is the settled law of this state that a conviction for rape may be had upon the uncorroborated evidence of the female assaulted. Brown v. State, 127 Wis. 193, 200, 106 N. W. 536;Lamphere v. State, 114 Wis. 193, 202, 89 N. W. 128;Osgood v. State, 64 Wis. 472, 474, 25 N. W. 529. It is not seriously contended, if the testimony of such female in this case is taken to be true, that she does not testify to facts which establish the commission of the crime. But it is asserted that her evidence bears upon its face the stamp of unreliability, and that therefore, under the rule in Hofer v. State, 130 Wis. 576, 586, 110 N. W. 391,O'Boyle v. State, 100 Wis. 296, 300, 75 N. W. 989, and Brown v. State, supra, the principal facts must be corroborated by other testimony. So much of the evidence of the prosecutrix as relates how she was taken by the defendant Mattie Vogel from near the Lempke house to where the first act of intercourse took place hardly seems credible. Considering the close proximity of a number of other persons, no good reason is apparent why she might not by her cries have attracted assistance, if she apprehended that a criminal assault was about to be committed upon her. The improbability of the story related by the prosecutrix, in the foregoing and some other particulars, detracts from the weight that should otherwise be given to her evidence. But, whatever was the purpose of the prosecutrix in leaving the dance with Vogel, or whether she went voluntarily or forcibly, does not argue that the acts of intercourse testified to with the other defendants, or acts with Vogel after they arrived, were voluntary on her part, and there is certainly no inherent improbability in her assertion that they were accomplished by force and against her will. Neither is there any improbability in her statement to the effect that, during the time the last acts of intercourse took place, she was physically exhausted and in a semiunconscious condition, and incapable alike of resistance or consent. But it seems to us that the evidence of the prosecutrix was corroborated. The defendants, except Peter Christman, admitted acts of intercourse. As to him, the proof of sexual intercourse was almost...

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