The plaintiff in error was convicted of the crime of rape on the 8th of March, 1949, and sentenced to Wisconsin state prison for fifteen years.

The complaining witness was a woman of the age of eighty-eight years. The plaintiff in error contends that because of her age and mental condition, and because of the discrepancies between her testimony and that of a corroborative witness upon details, the evidence is insufficient to support a conviction. It is next contended that if plaintiff in error is wrong in this contention, then he is entitled to a new trial because of errors in the admission of testimony, in the remarks of the district attorney in argument, and in the instructions of the court.

Mrs. Blythin, the complaining witness, was addicted to the use of narcotics and had been for the past fifty years. At the time of the alleged offense she was allotted two grains of morphine per day by the federal government. The narcotic was kept under lock and key and was given to her by her son who lived with her. For a short time before the date of the alleged offense the son was at a veterans' hospital. Ike LaPlant, a friend of the son, stayed in the home of the complaining witness during the son's absence and prepared meals for himself and for her. A neighbor came in daily and put out her dosages of morphine.

The offense was alleged to have occurred on November 15, 1948. At the time one Alfred Anderson was in the bedroom which was just off the living room. The kitchen was just off the living room toward the rear of the house.

Mrs. Blythin testified that the plaintiff in error entered the house through the front door, snapped the light switch off, and immediately attacked her; that he threw her over a table in the living room; that she broke away and ran to the kitchen where he followed her; that she again broke away and ran back through the living room to the bedroom where Anderson was asleep and caught him by the hand in an effort to arouse him; that Gullickson pursued her and dragged her back to the kitchen, where he accomplished his purpose; that she screamed during all of this time.

Gullickson was a man in his forties, weighing two hundred pounds. Mrs. Blythin weighed approximately one hundred thirty pounds.

The witness Anderson testified that he was in the bedroom and saw Gullickson enter the home; that he was in town for a few days from a lumber camp; that he alternately had gotten drunk and slept it off, repeating the process during the 14th, 15th, and 16th, and during that time stayed at the Blythin house; that he was sobered up from a forenoon drunk when he awoke just before Gullickson entered the house; that he himself was fully dressed and got up and walked out the front door; that as he was fifteen feet from the house he heard Mrs. Blythin scream; that he paused momentarily but heard nothing further and continued on toward the village.

Plaintiff in error maintains that because of these discrepancies, the jury could not convict. He also maintains that Mrs. Blythin's testimony discloses she was not utterly exhausted after the event and that she therefore cannot be heard to say that she used the resistance at her command.

HUGHES, J.

We conclude that the conflict in the testimony of the state's witnesses affects the weight of such testimony only; it does not render it incredible, so that if a jury believes it, it is sufficient to support a conviction.

If a woman in the vigorous years of life had resisted no more than the complaining witness, it would present a serious question of whether she had not submitted before the rape was accomplished. However, the amount of resistance which a woman of eighty-eight is capable of is quite different from the ordinary.

There was nothing in the record to prove that use of drugs would render Mrs. Blythin incompetent as a witness. Her credibility was for the jury.

Because a new trial is necessary for reasons which we will later set out, we deem further discussion of the evidence undesirable.

During the course of the trial the state offered proof by cross-examination of Gullickson that he had been convicted of crime in 1926. On the afternoon of one day about an hour was consumed upon this subject. Investigation then revealed that the records referred to by the prosecutor were of violations of municipal ordinances. The next morning the following occurred:

Prosecutor: " Q. Mr. Gullickson, were you on the 2d day of May, 1940, in the circuit court for Eau Claire county, in the city of Eau Claire, Wisconsin, convicted of a felony? A. It was about that time. I would say `Yes' to that."

Defense counsel: "At this time I would like to make a motion to strike the question previous to the last one regarding the occurrence back in 1920."

Court: "That answer may be stricken. The jury are to disregard any testimony of any other conviction other than the one in 1940 to which he testified this morning."

This instruction strongly implied that Gullickson had been convicted of other crimes in addition to the one in 1940, but that the jury could consider only the one. It was prejudicial to plaintiff in error.

Testimony was admitted that the accused had remained silent in the sheriff's office in the face of accusations by the complaining witness. She testified that she saw Gullickson at the sheriff's office and asked him if he knew the old woman that had been raped and he never said a word; that she accused him of raping her and he did not answer. The trial court instructed the jury:

"An accusation made in the presence and hearing of one accused of crime, which he, having opportunity to do so, does not deny, and the truth or falsity of which is within his personal knowledge, are admissions of the accused by acquiescence."

Evidence of admissions by silence is to be received with caution and the question of whether under all the conditions and surrounding circumstances a normal person would make denial so that silence can be interpreted as an admission at all, is for the jury. The subject is treated at length in 22 C.J.S., Criminal Law, p. 1258, sec. 734, and 23 C.J.S., Criminal Law, p. 799, sec. 1234; no purpose would be served in restating the law in this opinion. Because of the fact that alleged admissions by silence are to be received and treated cautiously, we are of the opinion that the court invaded the province of the jury and his instruction that Gullickson's silence was an admission was prejudicial error. The best that can be said for silence is that under the proper circumstances the jury may determine it to be an admission.

The court further instructed the jury:

"You must find on the part of the woman not merely a passive policy or an equivocal submission to the defendant, such resistance will not do. You must find that the woman exercised the utmost resistance in her power, and submitted, if at all, with the utmost reluctance to the defendant. Unless you do find beyond a reasonable doubt that the woman did offer the utmost resistance in her power, and submitted to the defendant, your verdict will be `Not guilty.'"

This construction is contrary to the law. If the victim submits, no matter how reluctantly, the offense does not constitute rape.

Because of these errors, we are satisfied that the plaintiff in error was deprived of a fair trial, and that a new trial must be ordered.

Counsel for plaintiff in error also contend that the prosecuting attorney inflamed the jury by referring in his argument to the Weckler case (where a child disappeared while on the way home from school and is assumed by the press and public to be the victim of a sex maniac). Upon the new trial we recommend that this case be tried upon its own merits without improper reference to extraneous matters.

By the Court. — Judgment reversed and cause remanded for a new trial.

BROADFOOT, J., dissents.