perpetuities to realty manifestly abrogates the English doctrine as applicable to personalty. Expressio unius, exclusio alterius." There are several reasons why that assertion should not be given the force of law: (1) No authority is cited by the learned chief justice in support of it. No authority is cited in support of it in the lengthy opinion filed in this case unless the quotation of it, without protest by way of argument by my Brother MARSHALL, speaking for the majority of the court in Harrington v. Pier, 105 Wis. 507, 82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924, is to be regarded as an authority. (2) The assertion is not a sound proposition of law. In Dodge v. Williams, 46 Wis. 95, 1 N. W. 92, 50 N. W. 1106, the chief justice correctly states, what has already been indicated in this opinion, that: "The English doctrine of perpetuities applied to estates both real and personal, and grew up by a series of judicial decisions." In support of it he cites the two sections of Perry above mentioned. While the limitation upon the period of suspension of the power of alienation might be similar as to both classes of property, yet the common-law rules applicable to real estate were, in several respects, different from those applicable to personal estate. 1 Thom. Coke, Litt. 402, 403, note. This sufficiently appears from the authorities cited. As stated by Mr. Gray: "The rules of law and equity with regard to trusts were wholly abrogated in New York by the Revised Statutes of 1828, which now govern the entire subject." Gray, Restraint on Alienation of Property, § 180. Thus, one chapter of the statutes of that state is entitled, "Of Real Property, and of the Nature, Qualities, and Alienation of Estates Therein." Part 2, c. 1, 1 Rev. St. N. Y. pp. 665-701. Sections 2038, 2039, of the Revised Statutes of 1878 (sections 14, 15, c. 56, Rev. St. 1849), discussed at length in the opinion on file in this case, are literal copies of sections 14, 15, of article 1 of title 2 of chapter 1, pt. 2, of the New York statutes, except that the last section of the New York statute reads, "not more than two lives," while our corresponding section simply reads "two lives,"-a distinction without a difference. Numerous other sections of the New York statutes relating to real estate were adopted by our Revised Statutes of 1849, and have been continued since. Chapter 4 of part 2 of the New York statute is headed, "Of Title to Personal Property, in Certain Cases." Id. p. 715. Sections 1 and 2 of title 4 of that chapter read:

"Section 1. The absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more that two lives in being at the death of the testator.

"Sec. 2. In all other respects, limitations of

future or contingent interests in personal property, shall be subject to the rules prescribed in the first chapter of this act, in relation to future estates in lands." Id. p. 727.

Thus, it appears that the legislature of this state simply adopted certain sections of the New York statutes limiting the rule against perpetuities as to real estate, but made no reference to such New York statutes as to personal property,-much less as to the common-law rule against perpetuities as to personal estate. In adopting the sections mentioned they were not legislating in respect to the common law, but in respect to existing statutory law. This being so, how is it possible that the maxim: "Expressio unius est exclusio alterius"-mentioned by the learned chief justice-operated to "abrogate the English doctrine" of perpetuities "as applicable to personalty"? As stated by an eminent English judge, that maxim "is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice." Colquhoun v. Brooks, 21 Q. B. Div. 52, 65. To hold that the adoption of a statute of New York which materially shortened the common-law period during which the absolute power of alienation of real estate might be suspended operated, by virtue of that maxim, to "abrogate the English doctrine" of perpetuities as to personal property, is, to my mind, simply absurd. The claim that such shortening of the period of suspension as to real estate operated to lengthen the time during which the absolute power of alienation of personal property might be suspended indefinitely and to the remotest period would be the carrying of the doctrine of repeal by implication beyond all bounds; and that to secure a condition of things which, as we have seen, is "repugnant to the policy of the law" and "destructive to the commonwealth" and the purposes "for which property was at first established." In each of our sister states of Minnesota and Michigan, the legislature adopted the New York statute as to real estate, mentioned, but not as to personal property, the same as was done in this state by the Revised Statutes of 1849. The question here being considered was squarely presented for adjudication in each of those states. The Minnesota court expressly held that: "In this state the absolute power of alienation, as respects real estate, cannot be lawfully suspended by the creation of a trust for more than two lives in being. But as to personal property the common-law rule still prevails, and a trust therein may continue for one or more lives in being at the death of a testator, and 21 years and a fraction." In re Tower's Estate, 49 Minn. 371, 52 N. W. 27. The same conclusion was reached by the su

preme court of Michigan. Palms v. Palms, 68 Mich. 355, 363, 370, 36 N. W. 419, 434. On this last page it is said by the court that: "The personal property coming within the trusts is governed in this state by the commonlaw rule, which limits the suspension of the power of alienation to the period of any life or lives in being and 21 years afterwards." If these two decisions are right in the particular mentioned, then the assertion of Chief Justice Ryan, quoted, is wholly without foundation. That they are right, I apprehend, will not be disputed by any one who appreciates that the adoption of a particular statute simply displaces the common law to the extent that it is inconsistent with it. City of Chippewa Falls v. Hopkins, 109 Wis. 616, 617, 85 N. W. 553.

If a contrary rule, like the one announced in the opinion filled, is to prevail, then many of the decisions of this and other courts, purporting to be based upon the common law, would be without foundation. The difference in the statutes of New York and in this state, in the particulars mentioned, in a case involving the right to assign the income of personal property, was pointed out in Lamberton v. Pereles, 87 Wis. 449, 457, 458, 58 N. W. 776, 23 L. R. A. 824. That case is not referred to in the opinion of my Brother MARSHALL in this case. But the holding of my Brethren upon this particular question is not based upon the theory that the assertion of the Chief Justice, quoted, is a correct proposition of law. On the contrary, and in speaking of that particular assertion, the opinion of my Brother MARSHALL in this case expressly declares that: "Neither by the foregoing conclusion, nor by anything said in reaching it, do we intend, expressly or inferentially, to give any opinion as to whether the correct conclusion was reached in Dodge v. Williams. That case may not have been correctly decided. There were good reasons, perhaps, for saying that it was not, when the De Wolf Case was decided. In states having a statutory situation similar to ours, it has been held that the common law is in force. It is by no means improbable that, if we were permitted to deal with the subject as an original matter, we would so hold." But the decision, whether right or wrong, ought now "to be given the force of a statute." Thus it is, in effect, admitted that the assertion of the learned Chief Justice was wrong and without any foundation, and for that reason, in my judgment, it ought not to be sanctioned,-much less "to be given the force of a statute." "This is not a mere question of practice nor the construction of a local statute long acquiesced in, but is a question of general equity jurisprudence; and it is very important to the people of the state that this court should, at least on such questions, adhere to the principles of the common law so well established as to become elementary." Silk Co. v. Flanders, 87 Wis. 243, 244, 58 N. W. 383. Courts are instituted,

not for the purpose of making laws, but for the purpose of declaring what the law is; and an erroneous declaration, as to what the law is, does not, in my judgment, change the law, although it is binding upon the parties in the particular case. Such erroneous declaration of the law simply puts the court making it out of harmony with the law. Courts and judges, however learned and eminent, will from time to time make mistakes and erroneous statements in respect to the law, which should, when subsequently discovered, be corrected. In no other way can the high standard of the common law, declared centuries ago, be maintained. "Reason is the life of the law; nay the common law itself is nothing else but reason, which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason; for nemo nascitur artifex. This legal reason est summa ratio.

Νο

man (out of his own private reason) ought to be wiser than the law, which is the perfection of reason. * * * The reason of the law is the life of the law; for though a man can tell the law, yet, if he know not the reason thereof, he shall soon forget his superficial knowledge." 1 Thom. Coke, Litt. 1, 3.

*

But there is still another reason why the assertion of the Chief Justice should not have the force of law. It was, in my judgment, uncalled for in the case in which it was made, and was mere extra judicial dicta. This appears from the language of the chief justice in that case, where he said: "The English doctrine of perpetuities appears to have been applied to private trusts, but not to trusts for charitable uses, which usually are essentially and indefinitely permanent. The rule of public policy which forbids estates to be indefinitely inalienable in the hands of individuals does not apply to charities. These, being established for objects of public, general, and lasting benefit, are allowed by the law to be as permanent as any human institution can be, and courts will readily infer an intention in the donor that they should be perpetual. # If an alienation of the estate becomes essential to the beneficial administration of the charity, it may be authorized by a court of chancery. But, were this otherwise, the statute limiting the rule against perpetuities to realty manifestly abrogates the English doctrine as applicable to personalty." Dodge v. Williams, 46 Wis. 95, 96, 1 N. W. 92, 50 N. W. 1103. That case was decided upon the theory that the bequest was for a charitable purpose and outside of the common-law rule of perpetuities. Thus it was said by my Brother MARSHALL, in a recent case, that: "It was plainly and correctly decided, in Dodge v. Williams, that the statutes of perpetuities and of uses and trusts have no application to gifts for charitable purposes. That was as far as the court was called

*

upon to go on the facts in that case." Harrington v. Pier, 105 Wis. 493, 494, 82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924. Besides, in my judgment, the court is not called upon to decide in this case whether the common-law rule as to perpetuities respecting personal property is in force in this state. This seems to be conceded in the opinion of my Brother MARSHALL, where it is said, in effect, that: "The conclusion which we have reached, as to whether the trust offends against such common-law rule,

✦✦ would enable us to fully dispose of this case without deciding the proposition [just mentioned]." And, again: "If the conclusion were different as to" that proposition, "the final result would be the same, because

* if the trust were to be tested by the common-law rule, as to perpetuities," it would not fail. In the effort to give the assertion of the Chief Justice, quoted, "the force of a statute," it is claimed that that assertion is res adjudicata. In support of such claim, the opinion filed cites a case which holds that: "A proposition assumed or decided by the court to be true, and which must be so assumed or decided, in order to establish another proposition, which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided." School Trustees v. Stocker, 42 N. J. Law, 115. I have no objection to the rule thus stated, but in my judgment the assertion of Chief Justice Ryan does not come within that rule, but is entirely outside of it. The same is true as to the rule stated in the text-book cited in the opinion, where it is said that: "It has been held that not only is the judgment of a court conclusive on all questions actually and formally litigated, but likewise as to all questions within the issue, whether formally litigated or not; that is to say, all matters which are impliedly and necessarily within the issue joined, and the determination of which is necessarily included in the judgment." Wells, Res Adjud. § 217. This sufficiently appears from what has already been said. Chief Justice MARSHALL tersely stated the true rule when he said "that the positive authority of a decision is co-extensive only with the facts on which it is made." Ogden v. Saunders, 12 Wheat. 333, 6 L. Ed. 606; Evans v. Virgin, 72 Wis. 525, 39 N. W. 864, 7 Am. St. Rep. 870.

4. There is one other reason why the assertion in question should not be given the force of law. Five years after that assertion was made, in an opinion by Cole, C. J., speaking for the whole court, four members of which participated in the decision of Dodge v. Williams, he stated the commonlaw rule of perpetuities as to personal property when applied to private trusts, and among other things said: "This commonlaw rule of perpetuity as to personalty may be unaffected by our statute." De Wolf v. Lawson, 61 Wis. 469, 473, 474, 21 N. W.

615, 50 Am. Rep. 148. That was said after careful deliberation, in a case relating wholly to real estate, for the very purpose of preventing any one from being misled by such obiter remark of Chief Justice Ryan. The same was in substance repeated two years afterwards for the same purpose. Webster v. Morris, 66 Wis. 382, 28 N. W. 353. What was said in those two cases, and subsequently in Lamberton v. Pereles, 87 Wis. 449, 457, 458, 58 N. W. 776, 23 L. R. A. 824, I had assumed, substantially disposed of the obiter remark of Chief Justice Ryan in Dodge v. Williams. I had reached that conclusion because I had supposed it to be a universal rule, as held by the supreme court of the United States, that a decision of any court "not in harmony with some of its previous decisions has the effect to overrule those with which it is in conflict, whether mentioned and commented on or not." Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368.

While I have no doubt that my Brethren have made the ruling here complained of, in pursuance of a sense of duty, nevertheless I have been constrained to write this separate opinion, in which I have attempted, in a respectful manner, to expose what I regard as a legal monstrosity, in the hope that the legislature may do something to relieve the state of Wisconsin from being the only state in the Union where personal property may be given in trust for a private purpose and rendered inalienable for all time.

BANNEN v. STATE.*

(Supreme Court of Wisconsin. May 19, 1902.)

RAPE-ASSAULT WITH INTENT — EVIDENCESUFFICIENCY - INSTRUCTIONS REASONABLE DOUBT-TRIAL-COMMENTS BY COURTEXAMINATION OF WITNESS-LEADING QUESTIONS EVIDENCE OF COMPLAINT-PHYSICAL CONDITION.

1. Where prosecutrix's testimony of the commission of rape, though inconsistent, was corroborated as to the assault and as to her torn clothing and excited condition, and defendant denied her testimony almost in full, but admitted having offended the girl by certain acts, and conceded that she said she was going to tell her mother, and defendant would get a good scolding, the jury might find him guilty of assault with intent to rape.

2. The court, after reading the statute defining assault with intent to rape, instructed that if the jury did not find defendant guilty of rape, but found that he assaulted witness with intent to ravish her by force, they should find him guilty thereunder; that, to warrant conviction, they must believe that defendant assaulted her with intent to ravish and carnally know her against her will; that to take hold of and handle a woman with intent to gain her consent to sexual intercourse does not amount to an assault to rape, but the assault must be made with intent and purpose to compel the woman to submit, and to have carnal knowledge of her person by force. Held, not objectionable as stating that the amount of force was immaterial.

For opinion on rehearing, see 91 N. W. 965.

3. A mere fanciful or speculative doubt, such as a speculative mind may suggest, does not amount to a reasonable doubt. A doubt that ignores a reasonable construction of the whole evidence, and proceeds on mere speculation or suspicion, is unreasonable, and would acquit one proven guilty as easily as one not so proven, and so does not justify a verdict of not guilty.

4. After a jury in a rape case had retired, it returned, and asked whether the condition of the shirt waist and dress of the prosecuting witness after the alleged crime had been admitted in evidence, and the court said: "All the testimony you heard in court was admitted as being proper evidence by the court, and is all for your consideration. The testimony of herself and her mother and father as to the condition of her clothes as they claim immediately after, also the testimony of witnesses,

is all for you to consider." The court declined to repeat the testimony, saying that, if he misstated it, it would be error, and that it was the province of the jury alone to determine what the testimony was. Held, that there was no error in the remarks of the court.

5. A requested instruction is properly refused where covered in substance by those giv

en.

6. Where accused was convicted of assault with intent to rape, alleged error in instructions and admission of evidence bearing on rape will not be considered.

7. Leading questions rest very much in the discretion of the trial court.

8. Prosecutrix testified that she had on a pair of dark drab-colored drawers at the time of an attempted rape, and on cross-examination stated that on the morning in question she had left some white drawers in the room where she stayed, and did not leave anything but white drawers there. Held, not error to exclude a question as to what the white drawers were kept in.

9. The prosecutrix was then asked if she had a trunk or valise. Held not error for the court to remark, "She has already stated that part of them were hung up and part on a chair."

10. In a prosecution for rape it was not error to allow witnesses who visited prosecutrix's home the evening of the day in question to state whether or not prosecutrix made complaint, omitting the details thereof.

11. In a prosecution for rape it was not error to allow evidence of the physical condition of prosecutrix on the following day, including the testimony of a physician, who made a special examination, that "she looked pale and nervous, and even trembled, and when she put out her tongue it shook like a leaf, showing that her nervous system was, for some cause, disturbed."

Error to circuit court, Crawford county; Geo. Clementson, Judge.

Af

Richard Bannen was convicted of assault with intent to rape, and brings error. firmed.

Upon an information charging the plaintiff in error, Richard Bannen, with having committed the crime of rape upon one Ida Fosnow, Sunday, June 24, 1900, he was tried in the circuit court, and at the close of the trial, May 28, 1901, the jury returned a verdict whereby they acquitted him of the crime of rape, and found "him guilty of an assault with intent to commit the crime of rape." It is undisputed that at the time in question Ida was a little more than 14 years of age, and weighed 125 pounds, and had been accustomed to do housework, and for six weeks just prior to the occasion she had been work

ing for the mother of the accused, where he made his home at the time with his mother, his two sisters, and a younger brother. Richard was at the time nearly 25 years of age, and weighed 136 pounds. Ida's home was with her parents, who lived nearly a mile distant from Mrs. Bannen's house, if traversed by the roundabout line of the public highway, but was very much less by a direct line nearly east from Mrs. Bannen's house. There was another roundabout way by a path, to a considerable extent a wagon road, through the field, starting from the highway at a gate about 28 rods east from Mrs. Bannen's house to Ida's home, which was 47 rods nearer than by the public highway, and which Ida had been in the habit of taking. That path ran in a northeasterly direction from that gate for some 50 rods, thence directly east for 25 rods, thence down to the bottom of the hill in a northerly direction some 25 rods to the place where the alleged rape occurred. From that point the path extended for a short distance in a northerly direction, and then turned and ran to the east for a considerable distance, and then turned and ran in a southeasterly direction to the Fosnow house. Ida testified to the effect that the first time he had her down he held her wrists with one hand, and with the other touched her private parts,-raped her with his hand; and that the second time he threw her upon the ground and held her hands with one of his, and pulled her dress skirt loose with the other hand; that she was on her back, and he was on top of her; that she could hardly tell how he was upon her, or where his face was, but his body was then on her, and his legs outside of hers, when, without her consent, and against her will, and by force, he had sexual intercourse with her; that she "hollered" and "screamed," and he finally let go of her, and she got up. He lacked only five months of 25 years of age. According to his version, he sat down under the shade of a tree; that while he was seeking to pull some quilt patches away from her, she swung around, and sat down in his lap, with her dress partly up; that she reached her right hand around him after the patches which he had taken from her, and that he then kissed her, and put his hand on her leg, without any objection, and then up under her dress, and that, although she at first put her hand down over his, she then put her hands up to her head, and then he ran his hand up to her body, but did not put his hand on her private parts, nor try to; that her legs were close together; that she then asked him to let her go, and he did let her go; that she had no drawers on; that she never made any request to get up until she got up; that he did not throw her down, nor hold her wrists, nor pull her drawers down, nor pull her skirt loose, nor do anything against her objection or wishes.

W. E. Hove and E. M. Lowry, for plaintiff in error. E. R. Hicks, Atty. Gen., for the State.

CASSODAY, C. J. (after stating the facts). Counsel for the accused contends that, "if the testimony of the state is to be believed, the defendant is guilty of rape." He also contends that, since he was acquitted of that offense, the evidence is insufficient to convict him "of an assault with intent to commit the crime of rape." Section 4383, Rev. St. 1898. By reason of such contention we have given in the foregoing statement the substance of the testimony of the respective participants. The claim is that her testimony to the effect that he actually committed the crime of rape is inconsistent with a portion of her testimony. The inconsistency must be admitted, but it does not necessarily follow that there is no evidence that he made an assault with intent to commit the crime of rape. She was a young girl only a little more than 14 years of age. Had she been less than 14 years of age, she would, under the statute, have been incapable of giving consent. Section 4382. She was, manifestly, excited, and did not very clearly understand the meaning of the language employed. The accused concedes that when she got up she said that "she was going to tell her ma, and her ma would tell her pa," and he "would get a good scolding"; and, when asked if he thought she felt insulted when she got up, he said, "Well, I did kind of. She acted a little poutish, was all." The girl's testimony is corroborated as to her crying and being excited when she got home, and "holding her clothes on her,"-having a skirt and pair of drawers on, and the drawers being torn, and her telling her mother what the accused had done to her. Assuming his version of the affair to be correct, then it is very difScult to perceive why she should go away angry, or how a girl of 14 could make up out of whole cloth a story so different, and with so many details, as indicated in her testimony. We cannot hold that the evidence is insufficient to support the verdict. Of course, the crime of rape includes an assault with an intent to commit the crime of rape. The fact upon which they both seem to agree is sufficient to justify the jury in acquitting him of the crime of rape. If the jury were convinced beyond a reasonable doubt that by reason of such admitted fact, and her resistance and outcries, he finally desisted from an attempt to commit the crime of rape, then they were justified in finding as they did. State v. Mitchell, 89 N. C. 521. Such seems to have been the conviction of the jury.

2. Several exceptions are taken to the charge of the court. Some of them relate to the crime of rape, of which the accused was acquitted, and hence are not here involved, except in so far as they relate to the offense of which he was found guilty. Exception is taken because the court read to the jury the statute which declares that: "Any person who shall assault any female with intent to commit the crime of rape, shall be punished by imprisonment in the state prison not more than ten years nor less

than one year." Section 4383. And then, after stating the circumstances under which they must acquit him of the crime of rape, the court said: "If you do not find the defendant guilty of rape, and are convinced by the evidence beyond a reasonable doubt that the defendant assaulted Ida Fosnow on June 24, 1900, with the intent to ravish and carnally know her by force and against her will, you should find him guilty under the statute last quoted, and the form of your verdict should be, 'We, the jury, acquit the defendant of the crime of rape, but we find him guilty of an assault with intent to commit the crime of rape.' I have already explained to you the meaning of the terms 'carnal knowledge,' 'carnally know,' and 'by force' and 'against her will,' and, in order to warrant a conviction of the defendant of an assault with intent to commit the crime of rape, you must be convinced by the evidence beyond a reasonable doubt that he laid hands upon Ida Fosnow, and threw her to the ground, and got on top of her, with the intent then and there to have carnal knowledge of her person by force, and against her will, within the meaning of those terms as I have explained. I will say by way of caution that to take hold of and handle a woman with the intent to gain her consent to sexual intercourse does not amount to an assault to commit the crime of rape. The assault, to be an assault with intent to commit the crime of rape, must be one where the assailant makes the assault with the intent and purpose to compel the woman to submit to him, and to have carnal knowledge of her person by force, and against her will." The criticism is that by such instructions, taken together, the jury were told that it was immaterial what amount of force the accused might have intended to use at the time of the assault, but, if he intended to use any force at all for the purpose named, then he might be convicted. We do not think the portions of the charge quoted are subject to such criticism. Besides, the court had already charged the jury, at the request of the accused, to the effect that, if they found from the evidence that he intended to have sexual intercourse with her on the day named "only in case she would consent thereto," then that was "not such an intention" as would warrant them in finding him "guilty of an assault with intent to commit the crime of rape"; that if they entertained "any reasonable doubt as to whether the acts of the" accused "were invited or consented to by" Ida, they should give him "the benefit of such doubt" by finding him not guilty.

3. Error is assigned because, after charging the jury upon the subject of reasonable doubt in a manner calling for no exception, the court further charged the jury that: “A mere fanciful or speculative doubt, such as a skeptical mind may suggest, does not amount to a reasonable doubt within the