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

*February 25*

March *15, 1910.*

*Rape: Resistance: Threats: Examination of witnesses: Leading questions: Discretion.*

1. To constitute rape the act must be committed by force and against tbe will of the female; but where she is rendered insensible through fright, or ceases resistance under fear of death or great bodily harm, the consummated act is rape.

2. A conviction of rape is sustained in this case upon evidence which is *held*sufficient to warrant the jury in finding that the *261prosecutrix ceased to resist because her will was overcome by threats of great bodily harm. Winslow, C. J., and Maeshall, J., dissent.

■3. The allowance of leading questions Is a matter largely in the discretion of the trial court. Such questions being necessary in this case in order to get at the facts, their allowance was not an abuse of discretion.

EbuoR, to review a judgment of the circuit court for Ke-nosha county: A. C. Brazee, Judge.

*Affirmed.*

*Galvin Stewart,*for the plaintiff in error.

Eor the defendant in error there was a brief by the *Attorney General*and *Robert Verne Baker,*district attorney, ■and oral argument by *Mr. Baker.*

KebwiN, J.

The plaintiff in error, hereinafter called the -defendant, was convicted of the crime of rape upon a seventeen-year-old girl, sentenced to imprisonment for the term of ten years, and brings error. The main question before us for consideration is whether the evidence is sufficient to support the verdict of guilty. The contention of counsel for defendant is that the state failed to prove nonconsent or loss of volition and submission by reason of loss of volition.

The evidence produced tends to show that on the day in question, February 13, 1909, shortly after Y o’clock in the •evening, the prosecutrix left her home in the city of Keno-sha, Wisconsin, to go to a party at the home of one Becker. She called at a house on the way for a girl friend, whom she did not find, and proceeded on her way to the party, stopping at a store to get a box of candy, where she remained about ten minutes, and then continued on her journey. She met defendant, whom she did not know. After she had walked a block she heard defendant running after her, and when he came up to her he took hold of her and spoke to her. She did not answer. He walked about two doors with her until they were about in front of the Becker bouse where she was •going. She screamed and he put his hand over her mouth. *262Sbe bit bis band. He then grabbed ber by tbe throat, drew ber through an alley near tbe Becker bouse, until they came to a wasbline, which she took bold of and to which sbe clung. Defendant told ber to let go tbe wasbline or be would run bis knife into ber side, and, as be said this, pressed something against ber side. Defendant then drew prosecutrix across two lots, against ber will, to a chicken coop, and threw ber upon tbe ground, where water bad collected from melting snow. Sbe was frightened; tried to get up. He grabbed ber by the throat and tried to strangle ber. Sbe got up and tried to get away. He grabbed ber again and threw ber down, and sat or kneeled upon ber legs; put bis coat under ber bead, took off ber clothes, and, by renewal of tbe threats that be would run a knife into ber, made ber loosen ber elastics, then pulled down ber drawers, and bad sexual intercourse with ber against ber will. Sbe was paralyzed with fear. Just before tbe sexual intercourse, without stating in detail tbe vulgar language used, defendant said in effect that be did not want to commit murder, but did want to accomplish bis purpose. After tbe act be said be might get ten years for this, but that be would take tbe train for Chicago that night and be in New York tbe next day. After the act was committed prosecutrix helped defendant, at his request, to put on bis coat, and said sbe would say nothing about it, because sbe wanted to get away from defendant and through fear of refusing to comply with bis request to that effect. Sbe immediately after tbe act, and as soon as sbe could get away from defendant, hastened to tbe Becker bouse, pushed in the door, was in a state of great excitement, crying and sobbing, ber clothes wet from tbe water where sbe bad been thrown down, ber hair down and disarranged, ber face and eyes very red, appeared greatly exhausted, and said sbe bad been assaulted by a man and told what bad happened. Sbe lay on tbe couch in tbe Becker bouse for a long time with ber bands over ber face, and appeared to be in great distress. *263When defendant came borne at about 8 o’clock in tbe evening be was intoxicated. Defendant was a stranger to pros-ecutrix, sbe not having seen him to her knowledge before tbe time of tbe assault. Defendant was thirty years' old, and prior to tbe assault upon prosecutrix bad been twice convicted of burglary.

We shall not attempt to detail tbe evidence at any great length. Tbe foregoing, however, gives a fair idea of tbe salient points proved and upon which tbe case turns. Defendant admitted having sexual intercourse with the prose-cutrix, but denied tbe force and threats. In other respects the story of tbe prosecutrix was substantially undisputed by tbe defendant. While there is considerable evidence to tbe effect that the defendant exercised force from tbe time be first assaulted tbe prosecutrix until be accomplished bis purpose, it is at least very doubtful whether the evidence of force was sufficient to support tbe verdict in tbe absence of evidence of tbe threats and fear induced by such threats. In order to constitute tbe crime of rape the evidence must show that tbe act was committed by force and against tbe will of tbe female; but where tbe female is rendered insensible through fright, or ceases resistance under fear of death or great bodily barm, tbe consummated act is rape. 1 Wharton, Crim. Law (10th ed.) § 557; *Sharp v. State,*15 Tex. App. 171; *State v. Ruth,*21 Kan. 583; 2 Bishop, Crim. Law, §§ 1120, 1122; *Brown v. State,*127 Wis. 193, 199, 106 N. W. 536; *State v. Reid,*39 Minn. 277, 39 N. W. 796; *State v. Cunningham,*100 Mo. 382, 12 S. W. 376; *Wright v. State,*4 Humph. (Tenn.) 194; *State v. Shields,*45 Conn. 256; *Rahke v. State,*168 Ind. 615, 81 N. E. 584. As said in 2 Bishop, Crim. Law, § 1125:

> *“A*consent from fear of personal violence is void; and though a man lays no bands on a woman, yet if by an array of physical force be so overpowers her that sbe dares not resist, bis carnal intercourse with her is rape.”

*264This court bas often recognized the rule that where the will of the woman is overcome by threats of great personal injury there is no consent. *Brown v. State,*127 Wis. 193, 199, 106 N. W. 536; *Croghan v. State,*22 Wis. 444; *Bohlmann v. State,*98 Wis. 617, 621, 74 N. W. 343; *Whittaker v. State,*50 Wis. 518, 7 N. W. 431. In the last-cited case the conviction was reversed upon error in the charge, and in considering the subject of consent the court said:

> “This is not a case where the prosecutrix was overcome by threats of personal violence, and paralyzed and rendered helpless and passive by fear, so that her volition could not be exercised either for or against the act of sexual connection.”

And in *Bohlmann v. State, supra,*the court said:

> “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. 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.”

Counsel for defendant relies upon *Brown v. State,*127 Wis. 193, 106 N. W. 536, and *State v. Cowing,*99 Minn. 123, 108 N. W. 851, 9 Am. & Eng. Ann. Cases, 566. But the legal doctrine laid down in these cases is not out of harmony with what has been heretofore said in this opinion. In the *Brown Case*it did not appear that the female was overcome by fear or became paralyzed by threats and intimidation, and the evidence on the question of resistance was weak and insufficient to carry the case to the jury. The case was very different in its facts from the one now before us. The same may be said of other cases in this court in which convictions have been set aside for insufficiency of evidence, notably *Bohlmann v. State, supra,*and *O’Boyle v. State,*100*265Wis. 296, 15 N. W. 989, 991, where the relation of the parties with each other, and the character of the evidence, were such as to render evidence of resistance incredible. In the *O’Boyle Case*there was no corroboration, and the court said (p. 300):

> “Where the testimony of the prosecuting witness bears upon its face evidence of its unreliability, to sustain a conviction there should be corroboration by other evidence as to the principal facts relied on to constitute the crime.”

In *State v. Cowing, supra,*the court reviewed the cases at great length on the question of the resistance necessary to be proved in order to constitute the crime of rape, and found that the evidence was insufficient, and, further, that there was no evidence of threats or intimidation on the part of the defendant or any intent on his part to use any means necessary to accomplish his purpose, nor any reasonable grounds for apprehension of bodily harm.

The inferences to be drawn from the evidence in the case before us are strongly against the defendant. It is unlike cases in this and other courts where the relations of the parties were such as to render a claim of nonresistance at least in some degree plausible or perhaps credible. The defendant and prosecutrix in this case were strangers. They had never associated together. That prosecutrix should consent to the sexual intercourse under the circumstances detailed in the evidence seems most improbable and unnatural. Besides, there is much corroborative evidence here that prosecutrix did not consent. True, there is evidence which would indicate that she did not resist to the extent of her ability, and if it were not for the evidence of threats of bodily harm it would be difficult, if not impossible, to sustain the conviction. But the attack upon this young girl by defendant was a brutal one and well calculated to terrify her and paralyze her with fright. We have referred to the substance of the evidence regarding the threats and need not repeat it in detail. Seiz*266ing the prosecutrix by the throat, attempting to strangle her, threatening to put bis knife into her side if sbe resisted, accompanied by a movement indicating a purpose to do so, renewing these threats just before the act was consummated, and stating that he did not want to commit murder but did want to accomplish his purpose, in connection with other facts and circumstances in the case, were sufficient to warrant the jury in finding that the prosecutrix was prevented from further resisting through fright occasioned by the threats and that she never consented to the intercourse. As we have seen, failure to resist to the utmost of the female’s ability through fear of death or great bodily harm is no defense in a prosecution for rape. No complaint is made here that the jury was not properly instructed upon the law, and therefore we must assume, in the absence of anything appearing in the record to the contrary, that the jury found that the will of the prosecutrix was so overcome by threats of great bodily harm as to deter her from further resistance.

In 3 Russell on Crimes (6th ed.) p. 225, it is said: “The offense of rape may be committed, though the woman at last yielded to the violence, if such her consent was forced by fear of death or by duress.” In *Wright v. State,*4 Humph. (Tenn.) 194, it was held that consent through fear was no defense to prosecution for rape. In *State v. Ruth,*21 Kan. 583, 589, it was ruled:

> “That if a person by threats, or by placing a female in fear of death, violence, or bodily harm, induces her to submit to his desires, and while under this influence ravishes her, this is as much a forcible ravishing as if a person, by reason of his superior strength, would hold a woman and forcibly ravish her.”

To the same effect is *McQuirk v. State,*84 Ala. 435, 4 South. 775, 5 Am. St. Rep. 381; *State v. Cunningham,*100 Mo. 382, 12 S. W. 376; *State v. Shields,*45 Conn. 256; *Rahke v. State,*168 Ind. 615, 81 N. E. 584; *Bailey v.*
      *267
      *Comm.*82 Va. 107; *Ransbottom v. State,*144 Ind. 250, 43 N. E. 218; *Sharp v. State,*15 Tex. App. 171. In the case last cited there was practically no resistance. It appearing, however, that the female submitted through fear, a conviction was sustained.

The court below and the jury saw defendant in this case as well as prosecutrix, heard their evidence, and were in a much better position to judge of the weight and credibility of the evidence than this court. The court is of opinion that the question of defendant’s guilt was for the jury. *Williams v. State,*61 Wis. 281, 21 N. W. 56; *Schuster v. State,*80 Wis. 107, 49 N. W. 30.

The point is made by counsel for the defendant that the court erred in its rulings on evidence, and that error was also committed by reason of remarks by the trial judge in the presence of the jury. The principal complaint of counsel is that the questions of the prosecuting attorney were leading. It is apparent, however, from the record that it was necessary in order to get at the facts to permit leading questions, and the trial court obviously recognized that. ' Whether or not leading questions should be allowed rests largely in the discretion of the trial court. *Barton v. Kane,*17 Wis. 37, 42; *Porath v. State,*90 Wis. 527, 537, 63 N. W. 1061; *Bannen v. State,*115 Wis. 317, 91 N. W. 107, 965; *Brown v. State,*127 Wis. 193, 206, 106 N. W. 536.

The court is of the opinion that no prejudicial error was committed on the trial below, and that the judgment should be affirmed.

*By the Court.*— Judgment is affirmed.

WiNslow, C. J.

(dissenting). I am unable to bring my mind to the conclusion that the evidence justifies a conviction for rape. In my judgment the admissions of the complaining witness as to her failure to resist as well as to her active assistance in the very act make a legal conviction for rape *268impossible witbin tbe rales laid down in *O’Boyle v. State,*100 Wis. 296, 75 N. W. 989; *Brown v. State,*127 Wis. 193, 106 N. W. 536. To my mind tbe statement tbat sbe was '“paralyzed with fear” is absolutely disproven by ber own admissions as to wbat sbe did and wbat sbe omitted to do. It seems to me tbat hereafter all tbat will be necessary to turn fornication into rape will be for tbe complaining witness to testify tbat sbe was paralyzed with fear, no matter bow incredible tbe physical facts may make tbat statement appear.

Maeshall, J.,

(dissenting). I concur in tbe emphatic dissent by tbe chief justice from tbe decision in this case.

In explanation of my position it must be said tbat I do not. understand tbe record as tbe court seems to have. It was not thought necessary in tbe court’s opinion to state evidence in ■detail, only generalities, in the main, from conclusions of tbe prosecutrix, which this court has frequently declared are not entitled to any weight. *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, 106 N. W. 536. In tbe last case cited the court, as to tbe requisite character of evidence to establish tbe vital facts of resistance and nonconsent, said:

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

Here tbe girl testified, over and over again, tbat sbe was ‘Terrorized.” Sbe endeavored to excuse herself for failing to do any of tbe acts which a woman would be naturally expected to do under tbe circumstances to prevent ber ravishment, upon tbe pretext tbat sbe was “terrorized.” When the accused was walking ber down to tbe chicken coop, passing by tbe doors and windows of several occupied bouses, sbe *269made no outer j or resistance worthy the name npon the .pretext that she was “terrorized.” She was a fully and rather-overdeveloped woman, physically and otherwise. She was seventeen years old and weighed about 125 pounds. She was a working girl and would, naturally, under inspiration of supreme aversion to enforced ravishment, have been quite a match in strength for the accused. Erom first to last she was not injured physically in the'slightest degree, nor were her clothes torn, nor was any violence used in respect to them. She was not sufficiently outraged in mind but that she had more care for saving her glasses than of protecting her virtue. She did not lose the glasses or her hat, nor was either broken or injured. He was not injured in any way. Not a mark was left upon the body or clothing of either, indicating attack or resistance. Erom just such circumstances as those, on evidence quite as strong as any in this ease, the court condemned the verdict in *Brown v. State, supra,*and held that there was only proof of fornication with some degree of reluctance, that, however, not continuing to the end. A like-situation is, to my mind, plainly portrayed here. The accused had no weapon. He made no move indicating a purpose to obtain one or use one. All the evidence of the prose-cutrix as to his saying that he threatened to put a knife into, and she felt some hard substance against, her side when she was walking down to the chicken coop seems to be almost, if not quite, nonsensical. At that very time according to her own story, he had both arms around her and had been walking along with her in that attitude substantially from the instant that he fell into her company. After arrival at the chicken coop she said she could not recollect that she did anything. She said he threw her down and she got up and was free from him, he being flat on his back. There seems to be no reason at all why she did not then flee, if she really wished to escape. Her excuse for not doing so appears to me almost silly. She seems really to have given the accused, by coyly *270lingering within his reach, opportunity to take hold of her and pull her down with him again. Then, according to her own story, she did not kick or bite or strike or do any of the things which it was suggested in *Brown v. State*and other cases in this court are natural concomitants of genuine resistance to íavishment. He removed in part, the clothing which was in his way. She informed him, when he met with some difficulty, how to overcome it, and completed the dis-robement of her person herself. Her mental attitude did not change from that time on to the close of the encounter other than to more plainly indicate consent, if not even desire. Several times she testified that she was “terrorized,” but that, obviously, was not entitled to any weight. She testified that though physically unimpaired and in the fulness of her strength, for aught of its having been exhausted by physical resistance, from the time actual contact commenced till the affair was over, she did not do anything. She would not even testify but that her limbs were disposed favorably. The condition is well indicated by this testimony: “Did you kiss him then? *A.*I don’t know. *Q.*You don’t remember? *A.*No. If I did I was unconscious of it.” What does that indicate if not consent ? After the encounter was over and she was free from the accused, did she flee ? No. She, as the evidence would indicate, deliberately rearranged her clothing and assisted him at his request to put on his overcoat. Circumstances again, which in *Brown v.*State, *supra,*were said to repel the idea of rape. Then she walked along towards her destination, accompanied by the accused and exchanged promises with him not to tell of what had occurred. True, she said she did so because she was afraid. Again indulging in her preposterous conclusions, which though repelled by the evidence, seem to have been taken by the jury to outweigh it When she arrived at her destination there is little, if anything, in what occurred, so far as her testimony goes, indicating that she had just been forcibly rav*271Ished. SRe went into tRe Rouse and told a Mrs. Becker tkat •ske Rad keen “Reid up,” explaining wkat ske meant, and tken, according to Rer own story, lay down on tke couck and waited for Rer clotkes to dry Refore going Rome. SRe did not testify to anytking indicating tkat ske was “terrorized.” •Ske did not even say ske cried before or after arriving at ker destination or spoke in any way in tke manner of tkat supreme indignation wkick a woman would naturally evince immediately upon Raving keen dealt witk as ckarged.

All tkat repels tke idea of rape. True, tke woman wko met tke girl wken ske arrived at ker destination, testified tkat ■ske cried, and tkat the witness spent ker time endeavoring to soothe ker till after ske left tke Rouse to go Rome. Tkat story, in view of tke girl’s^ seems quite as unworthy of belief, as is tke latter’s that ske was “terrorized,” wkile ske was assisting tke accused to conveniently get to ker person, and assisting him to put on kis overcoat after tke affair was over and while tkey were walking away together and exchanging promises not to telL True, tke statement in tke court’s opinion would indicate some basis for tke verdict, but tke difficulty is, general conclusions of tke prosecutrix are dignified as evidence, contrary to, as said in tke *Brown*Case, “tke settled law of tkis state” in tkis class of cases. Take out of tke case suck general conclusions and look at just wkat tke witness said occurred and there appears, as tke chief justice indicated, a pretty clear case of fornication without sufficient resistance at any time to indicate tkat any power other than tke female’s own moral weakness under tke -influence of suggestion persisted in by tke accused, was necessary to accomplish ker consent.

Tke offense of rape is a terrible crime. There is about as muck difference between it and tkat of fornication as there is between assault and battery and murder. Indignation toward low male characters wko take advantage of tke moral weakness of suck of tke opposite sex as tkey may choose as prob*272able submitting victims, must not result in breaking down, or making at all uncertain, the boundary line between fornication and rape. No court in the land has made that boundary more distinct than this, repudiating the loose expressions-made by some courts and text-writers and in one or two early decisions here. *Whittaker v. State,*50 Wis. 518, 7 N. W. 431. There the court emphatically repudiated the theory that there can be consent under any circumstance and the-crime be rape,, and declared that consent, regardless of circumstances, does away with the element of “against her will” and renders that fornication which otherwise might be rape. It seems that the marked distinction, pointed out in the *Whittaker*Case, between submission through inability to-longer resist because of physical exhaustion or fear, while still continuing to mentally resist, may not be appreciated in the future. The court condemned using the word “consent” so as to indicate that it can ever exist in a case of rape, explaining that while there can be submission without consent 'there cannot be consent without submission. The use of authorities now from jurisdictions where that distinction has not been clearly recognized, may break the force of the studied attempt to not only recognize it here but to eliminate from previous decisions anything out of harmony therewith. “Any consent of the woman,” said the court, “however reluctant, is fatal to a conviction. There must be the utmost reluctance and resistance.” Again, “if the carnal knowledge was with the voluntary consent of the woman no matter how tardily given, or how much force had theretofore-been employed, it is no rape.” The court further said, in effect, that mere technical nonconsent is not sufficient to satisfy the essentials of rape. There must be actual nonconsent of mind and body. There must be actual resistance by every means within the power of the female, under the circumstances, not at first only, but to the very end, or the case, at the worst, is only fornication aggravated by circumstances to *273be taken into consideration in fixing punishment; that the crime of rape cannot he committed with the consent of the woman no matter how obtained, though there may be submission in the sense of not resisting through physical and mental disability to resist, and the crime be rape.

The dominant difficulty here is that there is hardly a circumstance as to the conduct of the two participants in the affair during or after the encounter to indicate a struggle of adversaries for the mastery. Absence of such after circumstances, alone, has been held to be fatal to conviction, notably in *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. In the latter case the circuit court sent the case to the jury, mainly, as here, on general declarations of the prosecutrix, which, on appeal, were said to be of no probative force whatever.