State v. Burton

• Decision Date: 14 October 1946
• Docket Number: 39989
• Parties: State v. Robert Burton and Roy Burton, Appellants
• Court: Missouri Supreme Court

196 S.W.2d 621

355 Mo. 467

State v. Robert Burton and Roy Burton, Appellants

No. 39989

Supreme Court of Missouri

October 14, 1946

Appeal from Ozark Circuit Court; Hon. Tom R. Moore, Judge.

Reversed and remanded.

John M. Bragg for appellants.

(1) There was no substantial testimony in this case sufficient to sustain the conviction of the defendants; and the verdict of the jury was the result of passion and prejudice against the defendants; and, the testimony of the prosecutrix was uncorroborated and so completely impeached and so opposed to the common experience of womanhood as to amount to no testimony at all. By reason of these facts the Supreme Court of this State has power to grant a new trial where the verdict is against the weight of the evidence or is not supported by any substantial evidence. State v Gregory, 96 S.W.2d 47; State v. Liston, 292 S.W. 45; State v. Prendible, 165 Mo. 329; State v. Huff, 161 Mo. 459; State v. Francis, 199 Mo 671; State v. Packwood, 25 Mo. 340; State v Mansfield, 41 Mo. 470. (2) Where the testimony is only that of the prosecutrix, not corroborated by any other witness, or circumstance, and such testimony is contradictory to common experience of womanhood, and such testimony is improbable and not corroborated, and such testimony shows to be false when contradicted by other witnesses the Supreme Court may grant a new trial to the defendant, in cases of rape where the prosecutrix is over 16 years of age. State v. Lawhorn, 157 S.W. 344; State v. Lewis, 136 S.W. 339; State v. Goodale, 109 S.W. 9; State v. Brown, 107 S.W. 1068.

J. E. Taylor, Attorney General, and Pershing Wilson, Assistant Attorney General, for respondent.

The evidence was sufficient. State v. Ball, 133 S.W.2d 414; State v. Barnes, 325 Mo. 545, 29 S.W.2d 156; State v. Lawson, 136 S.W.2d 992; State v. Thomas, 318 Mo. 843, 1 S.W.2d 157.

OPINION

Tipton, J.

An information was filed in the circuit court of Ozark County, Missouri, on November 6, 1945, charging Robert Burton, Roy Burton, Dave Fleetwood, Bernie Fleetwood and Bobbie Turner with forcible rape. A severance was granted appellants, Robert Burton and Roy Burton, and upon trial these appellants were found guilty and their punishment assessed at two years' imprisonment in the state penitentiary. They have duly appealed from that sentence and judgment.

Appellants contend that the evidence is insufficient to sustain the verdict for the reason that the uncorroborated testimony of the prosecutrix "is contrary to common experiences of womanhood," is improbable and is contradicted by other witnesses, and, therefore, that it cannot stand.

Prosecutrix testified that she was 17 years of age and lived some 12 or 15 miles east of Ava in Douglas County. On September 1, 1945, she went with a relative to Ava to shop and attend a picture show. In the afternoon of that day she attended a picture show, after which she met Roy Burton and Bernie Fleetwood. She had "kept company" with appellant Roy Burton in the past but had not seen him for about six weeks prior to this date. Between 5 and 6 o'clock that afternoon she, appellant Roy Burton, Dave Fleetwood and Julia Mae Davis walked to a filling station some distance from the business district of Ava. During this time she made arrangements to attend the picture show that evening with appellant Roy Burton. Upon returning to the business section Julia Mae Davis departed, and appellant Roy Burton suggested that they get in an automobile and wait until time to go to the picture show. Bobbie Turner was under the steering wheel of the automobile and shortly Bernie Fleetwood, Robert Burton and Dave Fleetwood got into the car. Turner started the car immediately and drove on Highway Number 5 south of Ava. Prosecutrix testified that she protested but to no avail and the trip continued until they reached Wasola, Missouri, in Ozark County. At this place the five boys got out of the car and went into a store. They came back with a bottle of soda pop for her and a bottle of whiskey for themselves which the boys drank. They then proceeded south on a state gravel road. Dave Fleetwood put his hand under her dress and one of the boys told her they intended to have sexual relations with her. Shortly thereafter they met two girls walking along the road whom the Fleetwood boys apparently knew. The car was stopped and all the occupants alighted except appellant Roy Burton and prosecutrix. They engaged these two girls in conversation for about ten minutes. Prosecutrix did not know these girls but learned later they were Avenal Wilson and Naomi Turner. Then she and the five boys continued south in the car. About 10 o'clock that night the car was driven approximately 200 yards off the highway and all five of the boys forcibly raped her, two holding her while a third had sexual intercourse, until the five had completed a ravishment. She testified that she made outcry during the alleged rapes.

She also testified that she voluntarily got back into the car with these five boys and from there went to a place where a dance was being held. She remained in the car with appellant Roy Burton and the other four boys went into the house where the dance was held. Some time during this period appellant Roy Burton left the car and went toward the house, but she remained in the car except for a short while when she stood by a tree as she was afraid of Dave Fleetwood and another person who were approaching the car. She testified that she spoke to no one there except appellant Roy Burton. She denied that Lillian Hicks and Nancy Jane Ryan offered to take her home, though they testified that they did so and that prosecutrix replied, "We will go back like we came, with the boys." These two witnesses testified that she was at the place where the dance was held when they arrived about 8 o'clock p.m. and that the dance broke up about 10:30 p.m., while prosecutrix testified that she arrived about 10 p.m. and stayed until about 2 a.m. On the way back they stopped at Squires, Missouri, where the two appellants left the car as they lived near this place, and the other three boys took her home. She arrived home at 4 a.m. Her mother was awake and she told her where she had been but she did not say anything about the alleged rapes until 6 p.m. of that day.

On cross-examination she admitted she could have gotten out of the car at Wasola, at the place where the boys conversed with the two girls, or at the dance, that she could have left the company of these boys at any one of these three places, but gave no reason for not doing so. She further testified that she had never had sexual relations before that night. Her pants, the only clothing introduced in evidence, were slightly torn.

Dr. M C. Gentry testified that some three weeks after the alleged ravishment he examined the prosecutrix and found that she had had sexual intercourse, but he was unable to determine the time. The two appellants denied that they or any of the other boys had sexual intercourse with the prosecutrix, or that they bought whiskey at Wasola. Appellant Roy Burton testified that...