STATE v. BEN GREENSTEIN

Minnesota Supreme Court1925-03-20No. No. 24,465

162 Minn. 346

Summary · law.co

Holding. The court affirmed the rape conviction, holding that the victim's failure to make an outcry does not negate the finding of rape when the totality of circumstances—including physical resistance, restraint, and the false pretense of arrest—demonstrates the required lack of consent.

A telephone operator was approached at 2 a.m. by the defendant and another man who falsely claimed to be police officers and said they were arresting her. After being taken to a car and briefly to the courthouse, she was driven back to her apartment building. When she tried to exit the vehicle, the defendant restrained her, pulled her into the back seat, and sexually assaulted her despite her resistance through crying, begging, and pushing against him with her hands. Her clothing was torn and her body bore bruises, which were observed by a policewoman days later.

The defendant argued on appeal that the victim's failure to scream or call for help demonstrated the assault lacked the severity required for a rape conviction. The court rejected this argument, holding that the victim's silence during the assault—committed in a residential area at 3 a.m.—was properly considered by the jury alongside all other circumstances of the case. The victim had physically resisted and the defendant had physically overpowered her, which was sufficient evidence of rape.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether absence of an outcry negates rape conviction
Degree of physical resistance necessary to establish rape
Whether fraudulent claim of police authority affects consent analysis

Procedural posture

The defendant appealed from an order denying his motion for a new trial following conviction of rape.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Taylor, O.

The defendant was convicted of the crime of rape and appealed from an order denying a new trial.

The only question presented is whether the evidence justified the jury in finding that the prosecutrix had resisted to the extent requisite for the act to constitute rape.

The prosecutrix, who was a telephone operator, and another girl, who was employed by a candy company, roomed together in ’ an apartment building in Minneapolis. The other girl had been ill in bed for two or three weeks. About 2 o’clock in the morning of Saturday March 15, 1924, defendant and a man named Krostick rapped and kicked on the door of the girls’ room, and demanded admittance saying they were police officers and accusing the girls of having a man in their room. The girls protested that they were alone, but after repeated demands the prosecutrix opened the door and told them to see for themselves that there was no man there. They pretended to search the room and then said that the man had jumped out of the window, that the girls were under arrest, and ordered them to dress to go to the police station. The girls dressed and were taken to a touring car with curtains on, parked across the street from the building, and directed to get into the car. They did so. Krostick said he would look around the building for the man and did not get into the car, and, so far as appears, took no further part in the affair. Defendant started with the car but, as they started, the sick girl became so ill that he called to Kros-tick that she was sick and turned back to the apartment and permitted her to get out. The prosecutrix wanted to get out with her, but defendant refused saying:

“No, you are all right, you are going to the police department with me.”

He drove down to the court house. She asked if there was any one to whom she could tell her story. He said no, she must stay in jail. She urged that she would lose her job, and after some parley he said he would take her home. On the way back he stopped at the Yellow Cab Station ostensibly to see the man that he said had made the complaint. Arriving at the apartment he stopped on the opposite side of the street. She says that she opened the door and attempted to get out; that he pulled her back in the car and slammed the door -shut against her arm and leg; that he pulled her over the top of the front seat to the back seat; that she began to cry and begged him to let her go; that she fought him as hard as she could; that she was unable to kick, but pushed his head, his face and his body with her hands; that he bit her, tore her clothes open and accomplished his purpose; and that he then let her go saying:

“Anytime I come up here to get you girls, you let me in, I got this on you.”

She went to her room and told her roommate what defendant had done. Her clothing was torn — both her dress and her underclothes— and her body was bruised in several places. The policewoman saw black and blue spots several days later. That same evening, Saturday, she consulted an attorney, and Monday morning made complaint to the county attorney. This prosecution followed. Her testimony stands undisputed. Defendant did not testify. Of course the manner and details of the assault rest wholly-upon her testimony, but the other parts of her story are fully corroborated.

The assault was committed about 3 o’clock in the morning while the car was standing in the street between apartment buildings in which many people were sleeping. The prosecutrix admitted that she did not make an outcry nor call for help. Defendant urges that her failure to do so shows that the offense was not of the gravity of rape, and cites authorities to that effect. The authorities as to the degree of resistance necessary to establish the fact that the female did not yield are collated in 9 Ann. Cas. 572. See also State v. Ingraham, 118 Minn. 13, 136 N. W. 258. Defendant and Krostick were not officers. They pretended that they were, however, and the prosecutrix believed that she was under arrest. Her failure to scream during the assault was a matter for the jury to consider in connection with all the other circumstances. They found that defendant was guilty of rape, and the record will not permit us to say that his offense was less than that.

Order affirmed.