106 N.W. 536 (Wis. 1906)
Grant Brown was convicted of rape in the Circuit Court of La Fayette County and sentenced to ten years in the state reformatory.1 The information charged that on October 27, 1904, Brown did ravish and carnally know Edna Nethery, a female over the age of fourteen years, by force and against her will.2 Brown and Nethery were children of neighboring farmers who had known each other all their lives. Brown was twenty years old and Nethery was sixteen.3
On October 29, 1904, Nethery was walking across fields to her grandmother's house when she encountered Brown, who was working on his father's farm.4 According to Nethery's testimony, Brown seized her, tripped her to the ground, positioned himself over her, unbuttoned their clothing, and had intercourse with her despite her requests to let her go, her attempts to pull away, screams, and efforts to hold the fence.5 Brown denied any resistance, stating that Nethery offered no objection to his advances and that the intercourse occurred without outcry or struggle.6
After the encounter, Nethery proceeded to her grandmother's house but first stopped in a shed to arrange her clothing, where she discovered a flow of blood.7 She then exclaimed to her aunt that Grant Brown had done something to her.8 The family physician examined her the next day along with another physician.9 He found a fresh rupture of the hymen and other indications of recent intercourse, but no bruises on her person or significant damage to her clothing beyond a one-inch rip in her drawers.10 Nethery told one physician that she had not resisted or fought.11
Following the guilty verdict, Brown moved for a new trial on grounds of insufficient evidence and improper influence on the jury.12 Affidavits from two jurors described how smoking in the small jury room after supper created foul air that made them ill.13 The affidavits also described how an officer informed the jury that the judge was leaving for the night and they would be locked up unless they agreed soon.14 This led the two holdout jurors to agree to conviction despite believing Brown innocent.15 The trial judge denied knowledge of the jurors' illness.16 Affidavits of other jurors minimized the illness and stated ballots offering conviction contrary to belief were at first refused but later received.17
Whether the evidence established that the prosecutrix offered the degree of physical resistance required to prove the crime of rape?18
To prove the crime of rape, courts require not only an absence of mental consent but the most vehement exercise of every physical means or faculty within the woman's power to resist penetration, persisting until the offense is consummated, except where resistance is overcome by unconsciousness, threats, or exhaustion.19 Mere general statements by the prosecutrix that she did her utmost are insufficient; she must relate the specific acts done so the jury and court may judge whether any means of resistance were omitted.20
No. The established facts show that Nethery testified largely with the repeated general statement that she 'tried as hard as she could to get away.'21 Except for one demand to 'let me go' and inarticulate screams, she mentions no verbal protests and describes no acts of physical resistance or reprisal by hands, limbs, or pelvic effort.22
It is improbable that such efforts, if made, would be forgotten or omitted.23 The facts further establish an absence of corroborating circumstances usually present in cases of actual rape, including signs of struggle on the clothing or persons of the participants and immediate complaint by the sufferer.24 Here the one-inch rip in the underwear was not shown to be characteristic of force, there were no bruises or scratches, and outer clothing showed no tearing or disarray.25 The prosecutrix's immediate disclosure is weakened because she stopped to arrange her underclothing and discovered the flow of blood, suggesting the discovery, not outraged flight, prompted complaint.26 These facts fall short of the required vehement and specific physical resistance.27
The evidence did not establish that the prosecutrix offered the degree of physical resistance required to prove the crime of rape.28
Whether the jury was subjected to improper coercive influence from the officer's statement and the conditions in the jury room?29
Yes. The established facts show that after supper several jurors purchased and began smoking cigars in the jury room, which was 18 by 15 feet, creating foul air.32 The two jurors who were the only ones remaining opposed to conviction were not tobacco users and became seriously ill from the atmosphere, had to leave the room for a time, and later suffered significantly.33
The facts further establish that the officer in charge informed the jury that the judge of the court was about to go to his hotel for the night and that the jury, as a consequence, would be locked up for the night unless they very soon agreed upon a verdict.34 The two holdout jurors, induced by apprehension of serious illness if they could not escape the vitiated atmosphere, announced willingness to agree to a guilty verdict despite still believing the defendant innocent.35 The verdict was therefore rendered under such threats and coercion that it should have been set aside.36
The jury was subjected to improper coercive influence from the officer's statement and the conditions in the jury room.37
Whether the information was defective because it omitted the word "feloniously"?38
Wisconsin statutes require offenses to be charged in plain and concise language and provide that informations shall not be vitiated by omission of words of form not tending to prejudice the defendant.39 If an information declares all elements essential to the crime and gives sufficient description to inform the accused of the specific acts charged, it is sufficient.40
No. The established facts show that the information alleged that on the 27th day of October, in the year 1904, at said county, Grant Brown did ravish and carnally know one Edna Nethery, a female of the age of 14 years and more, by force and against her will and against the peace and dignity of the state of Wisconsin.41 Alleging that the acts were done 'feloniously' would now add nothing material.42
The purpose of that word historically was to show matters like denial of benefit of clergy or forfeiture of estate, which are obsolete.43 No element of the present offense is lacking that the word might supply.44 Under the statutes the absence of 'feloniously' does not affect the substantial rights of the defendant, and the information is sufficient without it.45
The information was not defective because it omitted the word "feloniously".46
Whether the trial court erred in permitting the prosecutrix to testify that the act was against her will?47
No. The question put to the prosecutrix 'Was it against your will?' could properly inquire as to her mental state of willingness or unwillingness.50 The established facts include her testimony describing the events of October 29, 1904, and allowing this direct testimony on her mental state was proper.51
It would, however, be improper by that question to obtain her conclusion that the offense was against her will in the statutory sense without proof of the acts constituting the required resistance.52
The trial court did not err in permitting the prosecutrix to testify that the act was against her will.53
Whether the trial court erred in refusing to allow a physician to testify to the prosecutrix's statement that she made no resistance?54
The prosecutrix was not a party whose admissions would be competent for defendant.55 Such statements could be admissible only as impeachment or if the state had first given evidence of parts of the same transaction so as to open the door to the remainder.56 Merely proving the fact of a physical examination without detailing conversation does not admit past narrative statements as res gestae, except perhaps expressions of present pain or condition.57
No. The facts establish that the witness had already been allowed to answer the same question.58 Independently, the statement by the prosecutrix to the physician that she had not resisted or made any fight was not admissible as an admission by a party.59
The state had only proved the fact of the physical examination without detailing conversation, so it did not open the door to the remainder of the transaction.60
The trial court did not err in refusing to allow a physician to testify to the prosecutrix's statement that she made no resistance.61
Whether the trial court erred in refusing a requested instruction on the necessity of active physical resistance?62
Both propositions are correct and, in a case of such doubt, should have been impressed upon the jury clearly.63 The court's general charge gave a correct abstract rule on nonconsent and resistance, and because reversal is required on other grounds, the court does not decide whether that charge sufficiently met the specific request.64
No. Although the requested instruction states correct propositions, the court does not decide whether the general charge sufficiently met the specific request because reversal is required on other grounds.65 The propositions are that mere verbal protests and refusals would not suffice as resistance and that unless the jury found active physical resistance by the prosecutrix their verdict must be not guilty.66
The trial court did not err in a manner requiring reversal by refusing the requested instruction on the necessity of active physical resistance.67