State v. Burton, 39989.

• Citation: 196 S.W.2d 621
• Decision Date: 14 October 1946
• Docket Number: No. 39989.,39989.
• Parties: STATE v. ROBERT BURTON and ROY BURTON, Appellants.
• Court: United States State Supreme Court of Missouri

196 S.W.2d 621 STATE
v.
ROBERT BURTON and ROY BURTON, Appellants. No. 39989. Supreme Court of Missouri. Division Two, 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.

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...