State v. Kittle et als.

• Decision Date: 11 November 1919
• Citation: 85 W.Va. 116
• Parties: State v. Kittle et als.
• Court: West Virginia Supreme Court

85 W.Va. 116

State

v.Kittle et als.

Supreme Court of Appeals of West Virginia.

Submitted November 4, 1919.

Decided November 11, 1919.

1. Rape Evidence of Character of Prosecutrix.

In a prosecution for rape where the defendant admits having illicit connection with the prosecutrix, but swears she consented, evidence of her previous character for chastity is material upon the principal issue. (p. 119).

2. Same Witnesses Evidence of Previous Character of Prose-

cutrix.

Where in a trial for rape the defendant admits having sexual intercourse with the prosecutrix but swears she consented to the act, and there is evidence tending to prove that, prior to the commission of the alleged crime, she was a prostitute receiving the embraces of other men promiscuously, and she is asked on cross-examination whether she did not, on prior occasions designated and within a month or two before the alleged offense, have illicit connection with certain other men and she denies it, evidence of the facts denied are admissible as tending to prove consent. (p. 122).

Error to Circuit Court, Barbour County. Lawrence Kittle and others were indicted for rape, and they bring error.

Reversed and remanded.

A. M. Cunningham, James Coberly, W. T. George, H. J. Wilcox, and A. G. Jenkins, for plaintiffs in error.

E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, and W. Bruce Talbott, Prosecuting Attorney, for the state.

Williams, Judge:

Lawrence Kittle, Elbert Rhoades, Ray Hill, Arch George, Frank Logan, Floyd Moore, Thirl Griffith, and Jesse Thorpe were indicted for committing rape upon one Fannie Borror, a girl fifteen years of age, on the night of July 16, 1918. They were indicted at a special term of the circuit court of Barbour county called on the 23rd of July and were jointly tried in one week thereafter, and all found guilty except Jesse Thorpe, who was acquitted. Floyd Moore and Thirl Griffith were found guilty as principals in the second degree, with a recommendation by the jury that all be punished by confinement in the penitentiary, whereupon Kittle, Rhoades and Moore were sentenced for a period of eighteen years, Ray Hill, Arch George and Frank Logan for fifteen years each, and Thirl Griffith for ten years. This writ of error was awarded upon the joint petition of all the defendants. The indictment also charges the aforesaid defendants with conspiring to commit a rape upon the aforesaid Fannie Borror, and with having committed the aforesaid rape in pursuance of such conspiracy.

It appears that, on the night of the 16th of July, 1918, the

prosecutrix attended a picture show in the town of Belington

and when the show was over, about nine-thirty o'clock, she came

nut of the building and was met by Jesse Thorpe and together

they walked along the street in the direction of her home; that when they came to a corner, known as Ballah's Corner, some of the defendants took her away from Thorpe, and she says defendant Moore took hold of her arm and forced her to go np the hill to where defendant Kittle's automobile was awaiting and that Kittle then put her in the car with Bhoades, Hill, Logan and George and then drove to a place near the village of Dartmoor, some distance from Belington, and there kept her the remainder of the night, and that during the time she was assaulted, forcibly and against her will by a number of the boys, naming them, and by some of them more than once. She was brought back near to the town of Belington the next morning about seven thirty o'clock, she says, and put out in the road, and went to the home of Mrs. Borror, her foster mother who raised her since she was a year old. Mrs. Mary Beckner, a daughter of Mrs. Borror, who cooks for Davis Brothers in their restaurant in the town of Belington and has a room in the same building and usually stayed there at night, swears she was told by her sister Gertrude, about half past seven o'clock the next morning, that Fannie had not been at home that night. She then went immediately, she says, to her mother's home, thinking somebody had killed her, and did not find her there. She went down town again and was gone ten or fifteen minutes and then returned to her mother's and found Fannie there crying and very nervous. She says Fannie's dress was torn and her underclothes very bloody, and that she gave her a change of clothing and her mother washed her soiled underclothes. Dr. Rohrbough examined her at his office that afternoon and says he discovered that her vagina was inflamed and swollen, and also found what he thought was a small particle of the hymen adhering to the walls of the vagina. He says she was very nervous. Dr. Scott Smith, another physician who examined her about a week after the alleged rape was committed, swears that at that time the local manifestations of injury were not well marked; that if there had been any injury, such as testified to by Dr. Rohrbough, they had at that time pretty well cleared up. But at that time, he swears she was very nervous, that she could hardly talk so as to be understood on account of crying. He further states that the presence of a part of the hymen adhering to the walls of the vagina would be evidence of the fact that the hymen had been recently ruptured, that when ruptured it soon disappears entirely.

All of the defendants, except Thorpe, Moore, Griffith and Rhoades, admit they had sexual intercourse with the prosecutrix on the night in question, but they deny they used any force. They all swear that she consented, and Kittle and Logan swear they had had sexual intercourse with her on previous occasions with her consent. As evidence tending to prove consent defendants offered to prove by other witnesses that she had had sexual intercourse with a number of other boys, on other occasions not long before July 16, 1918. Before offering this evidence the prosecutrix was asked on cross-examination if she had not had illicit intercourse with other boys, naming them, on previous occasions to which her attention was particularly called, and she said she had not, and denied that she had ever been out at night with any boys, and denied that she had ever had sexual intercourse with anyone prior to the time of the alleged rape. This proffered testimony was rejected and its rejection is assigned as error. Whether such evidence is admissable is a question on which there is much conflict in the authorities. We are not cited to any early Virginia decisions, or any decisions of this court directly on the question, and we have failed to find any. In a comparatively recent Virginia decision, we find the question whether or not the chastity of the prosecutrix in a trial for rape can be supported by evidence, unless it has been previously attacked, mooted but not decided. Coleman v. Commonwealth, 84 Va. 1. And in Fry v. Commomvealth, 82 Va. 334, it was held not permissible* on cross-examination of the prosecutrix to ask her if she had not before been a person of unchaste character. But the opinion on this point is brief and cities no authority and gives no reason for denying the question. Whether the question was considered by the court as privileged, or as introducing collateral matter for the purpose of contradicting the witness, the opinion does not state. It seems to us that the previous character of the prosecutrix for chastity or unchastity is material upon the vital issue whether or not the prosecutrix consented. Here she swears she was forced...