#### Skulhus, Plaintiff in error, vs. The State, Defendant in error.

*December 12, 1914*—

January *12, 1915.*

*Criminal law: Assault with intent to commit raye.*

1. A person is not guilty of an assault with, intent to commit rape unless, at the time he made the assault or at some time during its continuance, he purposed violating the woman forcibly and against her will. If he so purposed, it matters not that fear of detection and the consequences of his act, or the manner and degree of resistance, caused him to desist.

2. A purpose to overcome resistance is essential to the offense, hut if the woman does not at any time consent it is not essential that she resist unto death, or continue her physical resistance in face of reasonably supposed imminent peril of great bodily harm, or controlling terror.

3. Although in this case the accused desisted .from the assault as soon as outcry was made, a verdict finding him guilty of an assault with intent to commit rape was warranted by the evidence.

EkboR to review a judgment of tlie circuit court for Eau' Claire county: E. Ray Steveks, Judge.

*Affirmed.*

Plaintiff was, in due form, convicted of the crime of assault with intent to commit the crime of rape. The alleged event occurred at Eau Claire, Wisconsin, in the daytime of August 13, 1913, and in the dining room of the woman’s home. He was thirty-five years of age, a man of family, and a resident business man of Eleva, Wisconsin. She was a married woman twenty-two years of age, rather large and strong. The night before he lodged with a friend at a well known hotel in the city. In the morning he paid his bill and started out to make calls, ostensibly, for the purpose of soliciting enlistments in what he called his “Household Insurance Club.” Somewhere around 10 o’clock in the forenoon he brought up at the house.of a neighbor of the assaulted party, which he-entered without leave, and commenced plying his ostensible trade. The lady of the house was alone. He represented himself as Dr. Nicolaysen and said he was connected with a *476firm of prominent doctors of tbe city. Without inducing the lady to join his club or being permitted to proceed far into the house or discuss his pretended business, he departed and soon called at the near-by house in question. lie entered the house, without leave, and found the lady thereof apparently alone. He made known his pretended business, as before, and repeated his misrepresentations, adding that some 300 Eau Claire ladies were going into his scheme, that the neighbor first called upon had joined, and he had given her a thorough examination. In the meantime he satisfied himself by inquiries that the woman was, in fact, alone. The house was on a much traveled street, was near thereto, was with open doors, and but a few feet from the house he first entered. He suggested taking the woman’s measurement, and such suggestion not being met with favor, followed it by declaring he would do so. Upon that he advanced towards her with a cord in his hands, grabbed her, attempted to take suggestive liberties with her person, commanded her to come into the bedroom, and forced her nine feet in that direction. They struggled some three minutes, resulting in his getting inside the bedroom and trying to pull her in. Thereupon, despairing of breaking his hold by pulling, or otherwise making him desist, she struck him and screamed. He did not desist immediately upon being struck but did and ran away when she screamed. In a few moments she went to the neighbor’s house aforesaid and made complaint of the attempted violation of her person. The accused was an entire stranger to the woman and to people generally in the neighborhood. During the contest aforesaid neither the woman’s hair nor her clothing was disarranged in any way nor, while the assault was.in progress, did evidence of anything unusual occurring attract attention of neighbors or passers by, except the woman next door heard one shriek. Soon thereafter the assaulted called and appeared to be normal in every respect, except she was much agitated and crying. She said the ac-*477«used wanted to go into tlie bedroom with ber and she struck him, and then he took his hat and went away and that was the last she saw of him.

After the accused was arrested he freely and correctly stated his residence, age, and business. He said'he was accustomed to visit Eau Claire once in a while, and that he had no remembrance of having assaulted the woman. He denied the charge. The cause was submitted to the jury resulting in a verdict of guilty as charged, and judgment was rendered thereon.

Eor the plaintiff in error there was a brief by *Larson & Gilbertson*and *S. G. Gilman,*and oral argument by *J. G. Gil-bertson.*

Eor the defendant in error there was a brief by the *Attorney General, J. B. Messer schmidt,*assistant attorney general, attorneys, and *Fred Arnold,*district attorney of Eau Claire county, of counsel, and oral argument by *Mr. Messer schmidt.*

MARSHALL, J.

The jury and the trial judge saw the participants in the event which resulted in the accused being put upon his trial for the serious offense of which he was convicted. Seeing' the person assaulted and hearing her testify, and observing the accused during the trial, though he did not testify, might properly have had a very efficient influence in producing the decision complained of. Presumptions in that regard are to be considered in support thereof, in addition to all reasonable inferences from the evidence, found in the record.

True,( notwithstanding the conduct of the accused was highly reprehensible from any point of view, and he deserved severe punishment therefor, he did not commit the crime for which he was convicted, unless at the time he made the assault, or at some time during its continuance, he purposed, violating the woman, as charged, forcibly and against her will. If he did, it matters not, that fear of detection and the *478consequences of his act, or the manner and degree of resistance, caused him to desist. While in a case of this sort the' conduct of the assaulted party as regards self-defense is very strict in favor of the idea that some offense, if any, less than the highest was attempted or perpetrated, it must not he lost-sight of that it is consent by the assaulted party, however reluctantly given, and a purpose to secure Consent, regardless of the means used to accomplish it, which robs the act of the vital element of the highest offense which can be committed upon womanhood, — not submission or purpose to secure submission. There may be, under some circumstances, the latter or a purpose of securing it, and utter absence of consent, on the one side and determination to conquer the will as well as the body on the other, characterize the event.

The evidence in this case must be viewed in the light of the foregoing. Conditioned that there be no consent, a woman is not compelled, in her self-defense, to resist unto death, or continue to physically resist in face of reasonably supposed imminent peril of great bodily harm, or controlling terror,— to avoid being socially convicted, and ojaen to be efficiently charged before the law, of being guilty of the highly immoral offense requiring only consent, though reluctantly given.

The maxim, “There is reason in all things” applies in this field as well as in any other, and enters into the rule stated with misleading omission of any explanation that resistance to the uttermost, both mental and physical, and executed purpose to overcome such resistance, is essential'to the offense of rape, and assault with such purpose is essential to the necessary, precedent offense.

Regardless of the moral aspects of the matter, there is no middle ground in the law between the highest offense upon woman, including the essential precedent offense, and that where both parties are to be treated as participants in violating the law and candidates for punishment by the law, and by social condemnation where the penalties to woman are *479quite as severe as those prescribed by statute. Therefore,, while the duty of self-defense and the essentials of its efficient performance are very great, as has been stated, the dividing line being between consent and submission with criminal participation on one side and entire absence of it and abhorrence of the act by one party, on the other, the real fact of the matter is often one of extreme difficulty to determine, especially in a case where, as here, it is not claimed that the intended offense proceeded beyond a preliminary assault. The ultimate must be read out of inferences arising circumstantially. To do that is peculiarly a jury function. It would take an extreme case to impeach the result reached, especially when approved by the- trial judge.

Where a jury faces a situation characterized by 'a hostile ■assault having been unquestionably committed, as in this ■case, and, especially, by an utter stranger of intelligence and middle age, upon a young married woman, alone and in the ordinary performance of her domestic duties, they cannot be expected to draw any very fine line in respect to whether the assaulter purposed forcibly conquering .and securing submission or only of obtaining consént. To reason that, where a person circumstanced as the accused was, goes as far as he did, the probabilities are all in favor of the view that he intended full accomplishment, regardless of opposition, notwithstanding he was aroused to a full sense of his danger by an outcry liable to bring assistance to his victim, is logical and certainly permissible.

The conduct of the accused may well be viewed as conclusively negativing any purpose other than to have carnal knowledge of the body of the woman regardless of opposition from her. That he desisted as soon as an outcry was made, is evidentiary to the contrary, but not, necessarily, of sufficient weight to create a reasonable doubt as to what his real purpose was and that he was so recalled to the peril of his situation. It may be conceded that, for the time being, the *480.accused was so mentally perverted and so controlled by his mere animal nature that he was deaf to the consequences of his act, unless he was actually insane, of which there is no proof; but that affords him no excuse..

We have thus written at considerable length because of the earnestness with which counsel contended that the circumstances characterizing the occurrence in question leave, so clearly, a reasonable doubt as to the purpose of the accused, that the jury was not warranted in finding him guilty of more than the offense of assault. We have purposed in deciding the case, to make such full response to such contention as to indicate that it has been carefully considered in all its aspects.

While the foregoing has been primarily addressed to the contention that there is no sound basis in the evidence for the' verdict, it covers, sufficiently, all points suggested in respect to instructions and refusals to instruct.

*By the Court.*— The judgment is affirmed.