October 8, 1951 —
November 6, 1951.
APPEAL from a judgment of the circuit court for Jackson county: BRUCE F. BEILFUSS, Circuit Judge. Affirmed.
For the appellant there was a brief by Willis E. Donley, attorney, and Terence N. Hickey of counsel, both of Menomonie, and oral argument by Mr. Donley.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and oral argument by Mr. Platz.
Action commenced by the state of Wisconsin by issuance of a warrant on February 3, 1950, and information charging the defendant with the crime of carnal knowledge and abuse in violation of sec. 340.47, Stats. Upon a jury verdict of guilty, defendant was sentenced to serve an indeterminate term of not less than one year nor more than four years in the state reformatory at Green Bay. Defendant Glen E. Pickett appeals.
In the lower court the case was consolidated for trial with the case of State v. Ulness. Defendant Ulness has not appealed.
Sec. 340.47, Stats., is the "carnal knowledge and abuse" statute. Sec. 353.05 provides that "Every person concerned in the commission of a crime, whether he directly commits the crime or abets or aids in or hires, counsels, or otherwise procures its commission is a principal and may be indicted or informed against as principal and tried in the county where the crime was committed. . . ."
The complaining witness testified that she was fifteen years of age on July 23, 1949, the date of the alleged offense; that she was at home on her parents' farm with four younger children and they were all in bed; her parents were not at home. A car drove into the farmyard and she got up, put on a dress over her nightgown, and went downstairs into the dining room where she found the defendants Glen Pickett and Lyman Ulness. Pickett asked for money that her father owed Mrs. Pickett, and upon being informed that her father and mother were absent, Pickett said "Now is our chance," grabbed her, threw her to the floor, and held her there, one hand over her mouth, while Ulness had intercourse with her. She testified that she could smell liquor on the defendants' breath and that neither walked straight. After five or ten minutes the men left the house and as they approached their car they called "Hey, Wilma" and Theo saw a person slumped in the car whom she presumed to be Wilma Dupont. She looked at a clock when the men left the house and it was 10:30 p.m. Her parents returned home around 11 p.m. and she told them that Glen had been there asking for money, but she said nothing to them about the alleged offense because "I was ashamed and I thought nothing would turn up so I kept it to myself." She further testified that she had no other acts of intercourse either before or since that time. Sometime in January, 1950, her parents took her to a doctor and it was found that she was pregnant. The child was born April 12, 1950.
Mr. Arthur Peterson, father of Theo, testified that in July, 1949, he had been working at the Leonard Watson farm and never returned home until 8 p.m. or later; that on July 23d he got home around 8 p.m. Shortly thereafter, with his wife and son Robert, he drove to Humbird to call for his daughter Pauline. Upon returning home at 11 or 11:15 p. to., Theo told him that Glen had been there to get some money. The next day he drove to the Pickett farm and paid the money.
Mrs. Peterson, the girl's mother, testified that her husband worked for Watson all through the summer, that he never got home before 8 p.m., sometimes 9; that on the evening in question they left for Humbird sometime after 8, taking Robert with them; that she had been home at all times between 6 and 8 that evening and no one had stopped there.
The son, Robert Peterson, testified that he could not recall any time during that summer when Glen, Lyman, and Wilma had called at the home when his parents were away. He remembered accompanying his parents to Humbird to call for his sister.
It was testified by the defendant Glen Pickett that he and Ulness had spent the day of July 23, 1949, picking beans for his mother; that he did not leave the farm until about 7:30 that evening when he went to the Peterson farm with Ulness and Wilma Dupont; that upon arriving at the Peterson home he did not get out of the car, but that Theo and her brother Robert came out to the car, told him her father was not home; that he and the others immediately returned to the Pickett home, arriving there before 8 p.m. Although he admitted having been convicted for being drunk and disorderly several times during the winter before the trial, he testified that he had not been drinking on July 23, 1949.
Mrs. Jay Pickett, Glen's mother, testified that both Glen and Lyman had worked for her all day picking beans and were not absent from the farm until 7:30 that evening when they drove to the Peterson farm to collect the money; that they returned' before 8; that the two farms are less than a mile apart; that both boys were in bed before she retired at around 11 p.m. Her husband testified to the same effect.
The testimony of the defendant Lyman Ulness was to the same effect as that of Glen Pickett; that he had not been drinking; that he did not get out of the car at the Peterson home; that the visit took place at 7:30 p.m. and they were back at the Pickett farm before 8 p.m.
wilma Dupont's testimony corroborated that given by Pickett and Ulness. She admitted on cross-examination that she had been divorced the year before on the ground that she was an habitual drunkard, but denied that she had anything to drink on July 23, 1949.
Mrs. Melvin Holman was called by the state as a rebuttal witness. She testified that about a week or so before the trial she and Wilma Dupont had discussed the case and Wilma said she could not remember whether she had been at Peterson's that night because she had been drinking.
The rule is well settled that an accused may be convicted of statutory rape upon the uncorroborated testimony of a complaining witness. It is urged by appellant's counsel, however, that where such testimony lacks credibility, it should be corroborated as much as the facts and circumstances will allow, citing Ganzel v. State (1925), 185 Wis. 589, 591, 201 N.W. 724:
"It is true that convictions for sexual crimes must rest very largely upon the testimony of the complaining witness, as direct corroborating testimony is well-nigh impossible to procure. However, it is always legitimate to consider whether the subsequent conduct of the complaining witness is the usual and natural conduct of an outraged woman as bearing upon the credibility of her direct testimony."
Counsel contends that the failure of the complaining witness to tell her parents anything about the offense for six months thereafter is so unusual and so unnatural as to render her testimony incredible. Her explanation that she was ashamed' and kept it to herself because she' thought nothing would come of it was for the jury to consider, together with all other facts and circumstances. Having heard her tell her story and having observed her attitude on the stand, the jury obviously concluded that her testimony was credible. It certainly does not express such an abnormal attitude as to require disbelief.
So far as corroboration of her testimony is concerned, we have the testimony of the defendants themselves and of Wilma Dupont that they visited the Peterson farm on July 23d and that Pickett told Theo he wanted to collect some money from her father. The time of the visit is supported by the testimony of Mr. and Mrs. Peterson to the effect that no one called at the home between 6 and 8 and that the only time that Theo was there alone with the smaller children was from 8 until approximately 11 that evening. Mr. Peterson said that Theo told him of Glen's visit, not at 8 when he returned from his work at the Watson farm, but at 11 when he returned from Humbird.
Since the evidence was conflicting, it was for the jury to decide whom it could believe. Furthermore, the court, who had the same opportunity as the jury to appraise the credibility of the witnesses, stated before sentences were pronounced:
"The jury found you guilty and I can say without hesitation that had this case been tried before the court without a jury, that this court would have found exactly as that jury found upon the testimony that was introduced here. They had ample evidence and in my opinion credible evidence upon which to return the .verdict they did."
Error is assigned to the trial court in admitting evidence by the doctor of information given him by Theo as to the identity of the father of the child. Objection was made on the basis that it was: "Immaterial, it has no bearing on the question of statutory rape, just the question of paternity." The court overruled the objection: "I don't believe it is objectionable on that ground."
While the objection probably should have been sustained had it been made on the ground of hearsay, we cannot see that the evidence was prejudicial to the appellant here. In any event, the jury had already heard that the complaining witness accused Ulness of the act of intercourse, that she denied having had relations with anyone else, and that the child was born approximately nine months after the date of the alleged offense. The evidence objected to added little, if anything, to the clear inferences of the complaining witness' testimony.
By the Court. — Judgment affirmed.