Three issues are presented on this appeal:
1. In reversing the order of the county court, did the circuit court exceed the proper scope of review?
2. Did the evidence establish respondents' guilt beyond a reasonable doubt?
3. Did the trial court abuse its discretion in not ordering a new trial?
Scope of Review Upon Appeal to Circuit Court.
This appeal presents the court with its first opportunity to consider sec. 957.255, Stats., which became effective in 1962,
The decision of the circuit court neither declares that the evidence was insufficient to prove respondents' guilt beyond a reasonable doubt nor that the trial court abused its discretion in not granting a new trial. It appears from a reading of the decision that the circuit court reviewed the record and concluded, de novo, that "the facts are not as a matter of law sufficient to constitute the crime of rape." Relying on In re Johnson
Johnson involved a construction of sec. 48.47, Stats., which permitted anyone aggrieved by an adjudication of the juvenile court to appeal to the circuit court of the same county. In concluding that the circuit court did not have the authority to review the record and come to an independent conclusion, this court said:
"Ordinarily, in Wisconsin, an appellate court does not have the power to decide questions of fact as an original proposition upon its review of the record.
"`In a trial to the court findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence.' (Citing cases.) Swazee v. Lee (1951), 259 Wis. 136, 137, 47 N.W.2d 733.
"It has been held that upon appeal from the civil court to the circuit court for Milwaukee county, the findings have the same status as findings of the circuit court have upon appeal to the supreme court.
By way of explanation the court stated:
"This limitation upon the scope of review must rest, in part at least, upon a recognition that the trier of the fact who saw and heard the witnesses is in a better position to determine credibility and weight of evidence than a court which merely reads the transcript of the testimony."
Although the present case is a criminal matter, while Johnson was a civil case, the underlying rationale of Johnson in regard to scope of review should control if for no other reason than that the same problems of credibility exist.
In addition to incorrectly deciding the case as an original proposition based on a review of the trial record, the circuit court erred in ordering a new trial in the interests of justice. This is because under the provisions of sec. 957.255 (2), Stats., the circuit court does not have the authority, as does this court on review
Thus, as pointed out in Johnson, the questions properly before the circuit court should be the same as are before this court at the present time, i.e., whether the evidence was sufficient to prove the defendants' guilt beyond a reasonable doubt and whether the trial court abused its discretion in not granting a new trial.
Sufficiency of Evidence.
On a criminal appeal, the conviction will not be upset if the "`evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt.'"
In Wisconsin, "[a]ny male who has sexual intercourse with a female he knows is not his wife, by force and against her will" is guilty of rape.
"The impression left by the Brown Case unquestionably is that, unless the woman is beaten into unconsciousness or put into a state of mortal fear by threats, she must make resistance approaching the superhuman in its ferocity and effectiveness before the crime of rape can be committed. In the McLain Case there was an endeavor to make it clear that while the utmost resistance was required in all cases, this requirement was relative, not positive, and that what constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament of the victim, the relations of the parties, her state of health, her physical strength, her age, her experience, her courage, her nervous condition at the time, and perhaps other circumstances naturally affecting her powers of resistance. So reading the McLain Case, we do not think it can be said that there is any direct conflict between its doctrine and the doctrine of the Brown Case, but simply that it supplements the Brown Case and removes the erroneous idea which is likely to be gathered therefrom, namely, that the measure of resistance
The strict physical-resistance requirement is relaxed somewhat if it would be useless to resist.
"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 pertinent facts are these: On Saturday, June 20, 1964, L______ and S______, a friend who was staying with her while L_______'s parents were out of town, went shopping in downtown Milwaukee. L______ was sixteen years old at the time. At approximately 6:30 p. m., the respondents Waters and Plichta met the girls and asked them whether they wanted a ride. L______ recognized respondent Waters, and the girls accepted. After driving around for a short time the respondents asked the girls if they would like to go to a party in Grant Park. L______ knew some of the people who were supposed to be there. The four ate at a restaurant and then picked up a third girl, C______. Around 8:30 the respondents dropped S______ off at L______'s home, bought a six-pack of beer and some grape juice, and drove to Grant Park. There the couples necked and drank for about two hours although L______ testified that she poured most of the two drinks she had out on the ground. They left Grant Park and drove around for awhile and took C______ home. The
After turning the motor and lights off, Waters asked L______ if she would like to play a game. To no avail, L______ again asked to be taken home. Plichta then inquired whether she had ever had intercourse before. L______ answered "No." L______ testified:
"Then they held me and they took down my Bermudas and ripped where my zipper was. They took them down to about my knees and my panties, and they were holding me and Del [Waters] put his finger inside of me and said something, `No, I don't think she has,' and Paul [Plichta] said, `Let me see,' and he put his finger inside of me. He said, `Maybe and maybe not.'"
Each respondent took one of L______'s arms and straddled one of her legs with his. Her testimony continues:
"I was screaming and crying and Del [Waters] slapped me in the mouth and held his hand over my mouth. Then Del took down his slacks and shorts and took my hand and wanted me to touch his privates and I made a fist and I said, `No,' and I pulled away and he didn't take my hand back. He let it go at that. Then we were arguing back and forth. I asked them why they were doing this to me, that I never did anything to them. They said they would let me go but they would take off all my clothes and I could go to someone's house if I wanted to do this. Del asked me if they had to knock me out. I said, `Yes.' We were arguing back and forth about this. I wanted to go home and they said, `No,' not until I gave them what they wanted. They took my Bermudas and panties down all the way off my one leg. Then Paul went in the back seat and Del pushed me down so I was
When Waters was finished, Plichta told her to get in the back seat. She pulled her panties and Bermudas up and was able to get out of the car after starting to go over the back seat. All of this occurred sometime between 3 and 3:45 a. m.
L______ ran three blocks to a farmhouse but could not arouse the occupants. She continued down the road for another half a block to a lighted farmhouse where she told Mr. L______, the occupant, that she "was left out here by a couple [of] boys" and asked to use the phone. Mr. L______ testified that she appeared "nervous" and "upset," and although her hair was mussed up, there was no other evidence of physical violence. Mrs. L______ either gave her a safety pin or a needle and thread to repair the torn zipper. L______ telephoned S_____ and told her what had happened and then called her next-door neighbor. Sometime later the neighbor drove out to get L_____ and they went to the police department in Milwaukee and reported what had happened. On Tuesday L_____ was examined by the family doctor.
We cannot say that the evidence is insufficient as a matter of law to prove L_____'s utmost resistance was overcome. L______ was a sixteen-year-old girl who was taken to a remote spot in the country in the early morning hours by two men. She was slapped and muzzled when she began to scream and cry. At one point, although L_____ stated that they would have to knock her out to get what they wanted, combat with respondents was made impossible because the two men were holding her arms and legs and also because of the close confines of the front seat of the car. It is true that there is no evidence of any last-ditch resistance by L______ just before the act was completed. According to the evidence, she did not bite, scratch, kick, strike out against her assailants with either leg or arm, and she did not come out of the affair
In concluding that L______ did not resist to her utmost, the circuit court stated:
"This Court is not impressed by the `tender age' of the victim. She was old enough to be picked up; she was old enough to willingly imbibe of intoxicating beverages; she was old enough to occupy a blanket with one of the defendants for several hours at Grant Park, and to neck with one of the defendants."
While we disapprove of her behavior we do not believe that such conduct is tantamount to consent to the acts of final gratification taken by the defendants on the country road in Waukesha county. One whose moral standards permit her to engage in the activities noted by the circuit court may nevertheless resist to the utmost when it comes to a forced act of intercourse.
Respondents argue that the fact that L______ did not tell the first people she met, Mr. and Mrs. L______, what had
Abuse of Discretion.
Respondents contend that the state's failure to call the doctor who examined L______ as a witness amounted to prejudicial error because his testimony would have a bearing on the questions of penetration and chastity of the complaining witness. Although respondents do not say so specifically, it is apparent that they feel that the trial court abused its discretion in not granting a new trial on this ground.
But corroborating testimony in regard to penetration is not required. As this court said in Cleaveland v. State:
By the Court.—Order reversed.