Irving Browne Isaac Grant Thompson.

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would convey the estate subject to the right of the husband to
claim his estate by the curtesy, does not change the constmotion
to be given to the act. In either case, the right to convey such
estate as she has is given by the statute.

Bt thb Ooubt — The judgment of the Cixcuit Conrt Is afi^med.

Digitized by




WbitUkerv. State.

Whittakbb v. Statb.

(50 Wis. 618.)

Criminal law — rape — eoruerU.

If ft womftn fimllj' oonaents to aexoftl interoonrae, althongli such oooamt i» f»-
lactant, and is obtained throogli fear, daress, and fraad. or partlj throa^
fear» and partly hj force, the ofibnee is not rape. {See note, p. 800.)

nONVICTION of rape. The opinion states the case,

James HicJccox and Wm. F. Vilas, for plaintiff in error.
ff. W. Chynowethy assistant attorney-general, for State.

Obton, J, The Circuit Court gave the jury the following instmo-
tions, which were excepted to: " First. The element of force forms
a material ingredient of the offense of rape, by which the resistance
of the woman violated is overcome, or her consent induced by threats
of personal violence., duress or fraud ; for unless the consent of the
woman to the unlawful intercourse is freely and voluntarily given,
the offense of rape is complete. Second. If the circumstances
show that the consent was obtained by the use of force, and the
woman's will was overcome by fear of personal injury, then the
crime is rape. Third. If the woman ultimately consented to the
intercourse, such consent not being freely or voluntarily given, but
being obtained through fear, threats, duress or fraud, or partly by
fear and partly by force, then the offense is rape.'*

These instructions, so far as they relate to the consent of the
prosecutrix, were clearly erroneous, and were calculated to mislead,
and we think did mislead, the jury.

This is not a case where the prosecutrix was overcome by threats
of personal violence, and paralyzed and rendered helpless and pass-
ive by fear, so that her volition could not be exercised either for
or against the act of sexual connection. The testimony does not
show that the threat of personal violence overpowered her will, or so
terrified her as to destroy or suspend, for the time being, all power
of mental protest or physical resistance, or that she was so subju-
gated to the will of the defendant, by fear of death or of great per-
gonal injury, that she was incapable of voluntary action. She testi-

Digitized by


AUGUST TERM, 1880. 857

Whittaker v. State.

fied that the threat of using a revolver was conditional npon her
attempting again to cry out or give alarm ; but her testimony
clearly shows that she was not only capable of continuing but did
continue resistance, to the utmost extent of her physical ability, to
the 1a8t,or, if she ceased struggling before the consummation of the
act, it was because she thought it unavailing ; and that even after
the threat of using a revolver by the defendant, she again attempted
to cry out and give alarm, and that the defendant ''tried to shut
her up." She says: "I tried my best I could, and I couldn^fc do
any more, I got so tired out. I tried to save me so much as I could,
but I couldn't save myself, and he held me, and tried to do what he
was made to do, and I couldn't help myself any more. He had my
hands tight and my feet tight, and I couldn't move from my place
even ; and of course at last I worked so much as I could, and I gave

I mention this evidence to show that this case is not governed by
those exceptional, and I think questionable authorities, which hold
that that consent which is procured by threats and personal violence,
to the extent of overpowering the will, is not inconsistent with the
crime of rape ; as in Roscoe's Crim. Ev. 806, '* consent forced by
fear," which is defined, ** yielding at last to violence," or as in 1
Sussell on Cr. 904, "consent forced by fear of death or duress."
Such use of the word '* consent " is only excusable in cases where, by
fear and terror, the power of volition and physical resistance is
wholly lost, as in State v. Ruth, 21 Kans. 53. The same incautious
use of the word is found in Croghan v. State, 22 Wis. 444 ; but Mr.
Justice Cole defines the sense in which it is so used. '' But if the
circumstances show that this consent was obtained by the use of
force, and the woman's will was overcome by fear of personal
injury, then the crime becomes one of a higher degree " (rape). In
further explanation and palliation of this use of the word, it has
been held that forcible connection with a female who is insane, or
an idiot, or intoxicated so as to be insensible, or who is deceived,
believing the defendant to be her husband, and in other like cases,
where the will of the female does not concur with the act, or oppose
it, and does not act at all, and where she has no power of consent-
ing or dissenting, the act is said to be "against her will," and the
necessary ingredient of rape is present 2 Whart. Cr. L., § 1142,
and note a; and as in Walter v. People, 50 Barb. 144 ; F&oph T.
Quin, id. 128 ; and Crosswell v. People^ 13 Mich. 427.
Vol. XXXVI— 108


Digitized by



WhitUker v. State.

In such oases it is consistent to hold that the act is '^agaiost the
will " only becauBO it was not approved by the will, or the will did
not concur with the a(3t In all cases where there is no sensibilitj
or consciousness, or freedom of the will, the act is said to be against
the will. It is remarkable that no court has ever been incaatioos
enough to say, even in such cases, that the act is or may be '' not
against the will,'' and yet be rape. It may be that in a similar
sense, the word ^^ consent" has sometimes been unguardedly nsed,
in cases where the will has been overcome by fear of personal
violence, and has no power of action whatever, and no power to
oppose or dissent, as passive consent, and not dissenting as con-
senting. It is to be regretted that the terms ** with her consent"
and '* with her acquiescence" have ever been held compatible with
the crime of rape. In all of the cases in which, they have been
used they are as inaccurate as would be the terms ^' with the will"
or '^ not against the will," which are never used. This misuse of
the word in Croghan v. Slate, supra, and which was only incidental
and not necessary, was afterward corrected by this court in FuM
V. State, 25 Wis. 364, in which the terms "against her will "and
'* without her consent" are used as convertible terms in defining
rape of a female over ten years of age ; and still later, in Connen
T. State, 47 Wis. 523, an instruction asked on behalf of the defend-
ant that '^ if the woman resist, but finally consent, no offense is
committed," was held to be correct, and should have been given.
Mr. Justice Lyon says, in his opinion in that case: "Voluntary
submission of the woman, while she has power to resist, no matter
how reluctantly yielded, removes from the act an essential element
of the crime of rape." "If the carnal knowledge was with the
voluntary consent of the woman, no matter how tardily given, or
how much force had been theretofore employed, it is no rape."
More time has been spent on this branch of the subject because
the instructions given in this case might seem to be warranted bj
the case of Croghan v. State, in this court, and by similar authori-
ties elsewhere, and in accordance with which they were doubtlefls
intended to be given.

To will or to consent is an operation of the mind, and implies
positive mental action, and when these words are used as the ground
of responsibility for any given act, their meaning is the same. I^
is the quo animo of the act Consenting is to be willing, as a con-
dition of the mind. In the law, and in defining the crime of rape^

Digitized by


AUGUST TERM, 1880. 359

Whittaker v. State.

the terms ** against her will " and '[ without her consent'^ are used
convertibly. 2 Whart Or. L., § 1141. And they are so used in the
statutes of many of the States, as in Massachusetts^ Vermont,
Ohio and New Jersey. Where, therefore, there is physical ability
to resist, and freedom of the will to protest or dissent, to say that
the act may be rape when committed *'with the consent'* of the
woman is as erroneous as to say that it need not be committed
*' against her will." The terms "without her consent," in the
Massachusetts statute, are held to apply to a case where the defend-
ant knows that the woman is insensible and incapable of consent-
ing. Com, V. Burke, 105 Mass. 376. When the mind is subjugated
OS well as the body, so that the power of volition and the mental
capacity to either consent or dissent is gone, then the act may be
said to be '^against the will," and so also it maybe said to be
'' without consent." But when the mind is left free to exercise the
will, and to consent or dissent, then by consent responsibility for
the act is incurred. Where there is no such mental capacity, the
quality of the act is indifferent ; there can bono consent* or dissent,
and consequently no responsibility. The physical power may be
overcome, and the utmost resistance be unavailing ; yet the mind
may remain free to approve or disapprove, consent or dissent The
expression of consent may be compelled or coerced by threatened
violence, and yet there be no consent of the mind.

Thei*e is nothing to distinguish this case from ordinary cases,
where the resistance and the dissent ought to have continued to the
last, and where the physical power of the woman must have been
overcome by physical force to make the act rape. A threat of per-
sonal injury is the usual accompaniment of such cases. In this
class of cases the authorities seem to be uniform that the act must
be committed against the will of the woman, and without her con-
sent, not technically, but actually and in fact, or it will not be rape.
"Any consent of the woman, however reluctant, is fatal to a con-
viction. The passive policy will not do. There must be no con-
sent There must be the utmost reluctance and resistance." State
V. Burgdorf, 63 Moc 65. **It must appear that she showed the
utmost reluctance, and used the utmost resistance." Don Moran y«
Peoph^ 25 Mich. 356 ; s. c, 12 Am. Rep. 283. 'It is a vital ques-
tion whether the woman ceased resistance because it was useless or
dangerous, or because she ultimately consented.'' In the latter case
it is not rape. Regina v. Hallett, 9 0. & P. 748 ; Wright v. State,


by Google


Whittaker v. State.

4 Humph. 194; 2 Whart Crim. Law, § 1142. Aoqniescence ob-
tained by mistake, imposition or artificial stupefaction is the only
acquiescence allowable. If not thus obtained, it is fatal Whart
Crim. Law, § 1144. *^ There should be no doubt of the real absence
of assent" People v. Benson^ 6 Cal. 221. "There is a difference
between consent and submission. Every consent involyes a sab-
mission, but it by no means lollows that submission involves con-
sent." Regina v. Day, 9 C. & P. 722.

Authorities to the same effect might be greatly multiplied, but it
is unnecessary to extend this opinioh, already quite too long. We
are satisfied that it is never proi)er or safe to instruct the jury in
any case that the crime of rape may be committed with the consent
of the woman, however obtained, and that it was especially im-
proper in this case. It involves a confusion as well as a contradic-
tion of terms extremely dangerous to the administration of justice
in such cases. In defining the necessary ingredients of so high a
crime, there should be the utmost accuracy and precision . There
should be ho doubt about the law, where there is likely to be much
uncertainty about the facts in such cases ; and to s^y the least of
it, there was no such absolute certainty that the prosecutrix did not
actually consent to the sexual connection in this case as to render
such instruction harmless.

By the Court — The judgment of the municipal court is reversed,
and the cause remanded for a new trial.

Note by thb Repobtbr.— Aa to consent obtained by fnuid, see note, H Am. Bep. 8B0.

The doctrine of utmost resistance, laid down in the latter part of the principal opinion,
was held in People v. DohHnff, 50 N. Y. 874 ; s. c, 17 Am. Rep. 849. But this is not the
general rule.

In Commonweatth v. McDonald^ 110 Mass. 406, this doctrine was not adopted. Theiv
the defendant requested the judge to instruct the Jury ** that in order to conrict the
defendant, his act must have been without the woman's consent ; that if there was no evi-
dence of actual and determined resistance on her part, the inference would be that it was
with her consent ; and that there must have been sufficient force used by the defendant to
overcome any resistance that the woman might have offered. ** The judge declined so to
instruct them, but instructed them *' that the act of the defendant must have been without
the woman's consent, and there must have been sufficient force used by him to accomplidi
his purpose ; that the jury must be satisfied that there was no consent during any part of
the act ; and that the degree of resistance was frequently an essential matter for them to
consider in determining whether the alleged want of consent was honest and real ; but that
there was no rule of law requiring a Juiy to be satisfied that the woman, according to their
measure of her strength, used all the physical force in opposition of which she was capable.^
The court said : ^ Upon the subject of the degree of resistance on her part, and its bear-
ing upon the question whether the crime was committed with force and against her will,
the instruction given by the court was appropriate and correct." Regina r. CdmpUn, ]

Oox c. c. «ao.

Digitized by


AUGUST TEKM, 1880. ggl

Whittaker v. State.

The same doctrine was held in Stttte v. Ruth, 21 Kans. 583. The court said : *' The court
declared that the force necessary to constitute the crime of rape might be mental or phy-
sical force, or both combined, and 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. We under-
stand the court to simply mean that the act must be committed, either (1) by physical
force against the will of the female, or (2) with her acquiescence procured by threats or
violence. On the contrary, the court was asked to declare that the offense charged could
not be committed, unless there was the utmost reluctance and the utmost resistance on
the part of the female. The distinction between the two theories is broad and well defined.
Under the former, acquiescence, induced by mental terror and fear of violence, supersedes
the necessity of physcal resistance. Under the latter, there must be actual physical
resistance. The female when assailed must persist, though she knows resistance will be
vain ; she must flght, though she may believe this course will bring upon her other and
perhaps greater violence ; she must cry aloud, though she knows no relief is near ; she
must arouse her sleeping infant sisters to be witnesses to the outrage, though she knows
they can render her no aid. Under the former the force may be either actual or con-
structive, while under the latter it must be actual. The weight of reason and authority is
with the view of the court below. Turner v. People, 88 Mich. 863; Commonwealth v.
JfcDonoZd, 110 Mass. 405 ; Wright v. State, 4 Humph. 194 ; PeopU v. Dohring, 6© N. Y. 874 ;
8. o. , 17 Am. Rep. 849 ; Regina v. Camplin, 1 Cox C. C. 280 ; Roecoe*s Cr. Ev. (6th Am. ed.)
806;lEa8tP. C. 444, $7.

" In Roscoe's Cr. Ev., 8Uf»ra, it is said : ' It must appear that the offense was committed
without the consent of the woman, but it is no excuse that she yielded at last to the vio-
lence, if her consent was forced from her by fear of death or by duress.* In 2 Bishop's
Grim. Law, % 1120, the author says : * Yet wherever there Is a carnal connection without
anything which can be deemed a consent, where there is neither a consent fraudulently
^ procured nor any other sort of consent, by' the woman, there is evidently in the wrongful
act itself all the force which the law demands as an element of the crime.* And again, in
$ 1186 : * A consent induced by fear of personal violence is no consent, and though a mao
lays no hand on a woman, yet, if by an array of physical force he so overpowers her mind
that she dares not resist, he is guilty of rape by having the unlawful intercourse.' '* See
also 2 Whart. Crim. Law, $ 1142; Hleasant v. State, 8 Eng. 03 Ark.) 860.

So in /State v. SfiieldSy 45 Oonn. 256, the court says: '*The defendant requested the court
to charge the Jury, that to constitute the crime of rape it was necessary that the prosecu-
trix should have manifested the utmost reluctance, and should have made the utmost
resistance. The court did not comply with this request, and the refusal to do so is made
a ground for asking a new trial.

*' While it may be expected in such cases from the nature of the crime that the utmoofe
reluctance would be manifested, and the utmost resistance nuide which the circumstanoea
of a particular case would allow, still, to hold as a matter of law that such manifestation
and resistance are essential to the existence of the crime, so that the crime could not be
conmiitted if they were wanting, would be going farther than any well-considered case in
criminal law bas hitherto gone. Such manifestation and resistance may have been pre-
vented by terror caused by threats of instant death, or by the exhibition of brutal force
which rendered resistance utterly useless; and other causes which may have prevented
such extreme opposition and resistance as the request makes essential. The importance
of resistance Is simply to show two elements in the crime— carnal knowledge by force b}'
one of the parties, and non-consent thereto by the other. These are essential elements,
and the jury must be fully satisfied of their existence in every case by the resistance of
the complainant, if she had the use of her faculties and physical powers at the time, and
was not prevented by terror or the exhibition or brutal force. So far resistance by the
complainant is important and necessary; but to make the crime hinge on the uttennort
exertion the woman was physically capable of making, would be a reproach to the law
as well as to common sense. Such a test it would be exceedingly difficult, if not impossi-
^^ (Q apply in a given case. A complainant may have exerted herself to the uttermost
<tmit of her strength, and ncmy have continued to do so until the crime was oomwnnmated,


Digitized by



Bailej v. RagaU.

8tUl a Juiy, sitting cooUy in deliberation upon the tranaaction, oould not pomSbtj <
mine whether or not the limit of her strength had been reached. They oould newr
ascertain to ao7 great degree of certainty what eff^ the excitement and tenror maj
have had upon her physical system. Such excitement taken away the strength of one,
and multiplies the strength of another. The request in substance is as follows: that inas-
much as non-oonsent is to be proved by the resistance made, therefore, if the resistanoe
falls short of the extremest limit that could have been made, the deficiency necessarily
shows consent, «nd should be so charged as a matter of law. The fallacy lies in the
assumption that the deficiency in such cases necessarily shows consent . If the failure to
make extreme resistance was intentional, in order that the assailant might accompUali
his purpose, it would show consent; but without such intent it shows nothing important
whatsoever. The whole question is one of fact, and the court committed no error in so
leaving it to the Jury."

This doctrine is i^iiproTed by Wharton (Crim. Law, % 567).

But if the defendant intended to use force to the end, and the woman, who for a time
resisted, ultimately assented, the defendant may be convicted of an assault with
intent to commit a rape, or of an attempt. Whart. Crim. Law, % 677; People v. Antnudy.
18 N. T. 626; 8taU v. Croo, 18 Iowa, 09; Jolec v. State, 63 Qa. 60; 8laUY.M<mi»omerp, 6B
Mo. 896; R, v. BaUett, 9 a& F. 748.

Bailey v. Kagatz.

(80 Wis. 654)

Qfflfier of pdics — right tofaree 6rUrp into pritate Aoute.

A policeman has no right to rouse up the family of a respectable dtisen, after
they have retired for the night, and force an entry of the hoase, upon the
mere statement of eome person to him that he has heard that a woman of
bad character is stopping at the house.

APPEAL from tho Circuit Court for Winnebago county. The
case is thus stated by Taylor, J. : "This was an action
for a breach of the plaintiff's close by the defendant. The evidence
tended to show that on the night of the 5th of December, 1879,
between the hours of nine and ten o'clock, and after the plaintiff
and all his family had retired for the night, and the lights in the house
were extinguished, the defendant came to the kitchen door and
knocked ; that one of the inmates, a woman, asked, • Who is there?'
that no answer was made ; that the question was repeated, and no
reply given ; and that when asked a third time, defendant replied,
'I want to get in.' He was then asked to tell who he was, and he
replied, * I'll soon let you know who I am; 111 bnrst the door open
if you don't open it right away.' At that time the plaintiff himsdf
got up and said, *You had better not burst the door through.'

Digitized by


AUGUST TERM, 1880. 863

BaSlej y. Ragatx.

Plaintiff then made a lighfc, and came to the door, and ^aw that the
defendant was a policeman, opened the door, and the defendant
came in. Plaintiff then said, * Now you are in, what do you want ? '
Defendant replied^ *I was informed you kept a house of ill-fame
here, and I am in search of a young woman formerly of Oreen Bay,
and I expect to find her hero with a certain young boy from twelve
to fourteen years old, in bed together/ He claimed that he was
sent there by certain parties. He said if he had found the girl
there, he wanted to see her and give her a good talking to, and tell
her to leave the boys alone. That was what ho wanted to see her
for. He stayed in the house about ten minutes, and went away.
The evidence also shows that plaintiff's wife was frightened at the
noise at the door, and supposed burglars were attempting to get into
the house.

" The excuse the defendant himself gives for coming to the
house and disturbing the family at that time of night, was, that he
was a policeman of the city of Oshkosh ; that the brother of the
young boy, who was supposed to be with the woman from Green
Bay, had requested him to go with him to find the boy and bring
him home; and this brother told him, just before they called at
the house, that he had heard that the girl stopped at the house of
the plaintiff, and they thought the boy was there with her. The
evidence also shows that the defendant had never heard any thing
against the good character of the plaintiff or his family, or of the
plaintiff's house, except what the brother told him he had heard
that night. Neither the woman nor the boy was in the plaintiff's
house. .The boy never had been in the house at any time, and the
girl had been there two or three times to get some washing done
by a person residing in the plaintiff's family ; and tlie evidence
tended to show that the family had no knowledge of the bad char-
acter of the girl. The evidence of the boy, which was uncontra-
dicted, showed that at the time the defendant was at the plaintiff's
house, he was at work in the store where he was employed, and re-
mained there at work until after ten o'clock that evening. He also
testifies that a day or two after the 5th of December, defendant
told him he knew that he (the boy) was not at the house of plaintiff
at the time he went there ; and that defendant had several times
before that asked him if he could not get that woman for him
some night Upon this evidence the learned Oircuit judge ordered

Digitized by




Bailej v. Ragatz.

that the plaintiff be noDsuited, and judgment entered accordinglj,
from which the plaintiff appeals/'

Jackson i6 Thompson, for appellant.
Finch it' Barber, for respondent.

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 95 of 123)