State v. Dorton

• Decision Date: 23 February 1943
• Docket Number: 9413.
• Citation: 24 S.E.2d 455,125 W.Va. 381
• Parties: STATE v. DORTON.
• Court: West Virginia Supreme Court

24 S.E.2d 455

125 W.Va. 381

STATE v. DORTON.

No. 9413.

Supreme Court of Appeals of West Virginia.

February 23, 1943

Mahan, Bacon & White, of Fayetteville, for plaintiff in error.

Ira J. Partlow, Asst. and Acting Atty. Gen., and Kenneth E Hines, Asst. Atty. Gen., for defendant in error.

LOVINS Judge.

Douglas Dorton, having been convicted of rape with the recommendation for mercy, prosecutes this writ of error to a judgment of the Circuit Court of Fayette County, sentencing him to confinement in the penitentiary for twenty years. He and the complaining witness will be hereinafter referred to as "defendant" and "prosecutrix".

Prosecutrix testified that she first met defendant on a street in the Town of Oak Hill shortly after seven p. m. on November 6 1941, being introduced to him by Mary Campbell, a mutual acquaintance. Defendant admits meeting prosecutrix on the date and at the place hereinabove mentioned, but asserts that he had known her since the year 1939. After a short conversation relating to the purchase of liquor, the defendant, prosecutrix, and Mary Campbell went to defendant's automobile, in which defendant and prosecutrix drank a small amount of whiskey. Thereafter, the three persons drove to a beer parlor about midway between the Town of Fayetteville and Oak Hill, staying there until shortly before ten o'clock. On the return trip to Oak Hill, defendant, together with his companions, occupied the same seat, Mary Campbell being seated between defendant and prosecutrix. When they arrived in Oak Hill, Mary Campbell left the defendant and prosecutrix in the automobile, which defendant then drove to a secluded spot in a cemetery, where the assault took place. Prosecutrix testified that she was violated on the front seat of the automobile; that the act was accomplished by force and against her will and without her consent; that she screamed for help and resisted to the utmost from the moment she became apprehensive of defendant's intent and until after completion of the act and her strength failed.

Shortly after the assault defendant drove prosecutrix to a point in the vicinity of her home, where she left defendant, entered her home, passed her father and mother in the hall, and went to her room. Her mother followed her to the room, where she informed her mother of the conduct of defendant.

Prosecutrix asserts that this was her first experience of sexual intercourse, in which she is corroborated by a physician who examined her about twenty-five minutes after her arrival home. The physician testified that the prosecutrix was, at that time, extremely nervous, somewhat hysterical, and that he found no evidence of injuries on her person except a freshly ruptured hymen, which in his opinion resulted from a recent and first act of sexual intercourse.

Defendant testified that he became acquainted with prosecutrix in 1939 as hereinabove stated; that he had had sexual intercourse with her on three occasions prior to November 6, 1941; that she consented thereto including the fourth and last act of intercourse, which he says took place on the rear seat of his automobile. His testimony is corroborated as to his prior acquaintance with prosecutrix and there is testimony of two witnesses which tends to corroborate him as to one of the prior acts of sexual intercourse.

At the time of the alleged assault prosecutrix was twenty years of age and weighed approximately one hundred and seven pounds. Her general reputation for chastity was good. Defendant was thirty-seven years old and weighed about one hundred and sixty-five pounds.

The sharp conflict in the evidence is apparent from the foregoing statement. Defendant urges that the story of prosecutrix is incredible, and wholly fails to support the theory of force said to have been applied by him in accomplishing his purpose. He buttresses this by the assertion that the act of sexual intercourse could not have been consummated by force on the front seat of the automobile in the manner related by prosecutrix. This was a...