State v. Vance

Citation146 W.Va. 925,124 S.E.2d 252
Decision Date06 March 1962
Docket NumberNo. 12123,12123
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. George VANCE.

Syllabus by the Court.

1. 'To constitute the crime of rape, there must be some degree of penetration of the female genital organ by the male genital organ, but any penetration, however slight, of the labia or external lips of the vulva of the female is all that it necessary. The hymen need not be ruptured to sustain a conviction for rape.' Point 8, syllabus, State v. Brady, 104 W.Va. 523 .

2. 'In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.' Point 1, syllabus, State v. Bowles, 117 W.Va. 217 .

3. A new trial will not be granted in a criminal case on the ground of insufficiency of the evidence, when the verdict against the defendant is based on conflicting oral testimony and the credibility of witnesses is involved, or when the verdict is supported by substantial evidence.

4. 'It devolves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefit or reward of a worldly or temporal character or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession.' Point 3, syllabus, State v. Brady, 104 W.Va. 523 .

5. The trial court has a wide discretion as to the admission of confessions and ordinarily this discretion will not be disturbed on review.

6. An instruction which incorrectly states the law should be refused.

7. An instruction which is not sustained by the evidence should be refused.

8. 'In a felony case the accused must be present in person from the inception of the trial on the indictment to the final judgment, when anything is done affecting him; and the record must show his presence.' Syllabus, State v. Martin, 120 W.Va. 229 .

Glyn Dial Ellis, Logan, for plaintiff in error.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.


In the trial of an indictment against the defendant, George Vance, for the crime of statutory rape, the jury returned a verdict of guilty as charged and, the State having waived the death penalty, the Circuit Court of Logan County by final judgment entered February 8, 1961, sentenced the defendant to imprisonment for life in the penitentiary of this State. To that judgment this Court granted this writ of error upon the application of the defendant.

The defendant, whose exact age is not established by the evidence but who is shown to be well above the age of sixteen years, had been married to the mother of the prosecutrix, Billy Lou Vance, a ten year old female child, for a period of approximately nine years before the date of the alleged offense which occurred in Logan County during the forenoon of Saturday, September 10, 1960. The prosecutrix lived with the defendant and his wife at or near a place known as Mountain Lake Park, which appears to be a part or a suburb of the city of Logan, in Logan County.

During the early forenoon of Saturday, September 10, 1960, the defendant, who had been drinking wine and who took a bottle of it with him, left his home, accompanied by the prosecutrix, an eleven year old neighborhood girl named Kay, and a young boy named Paul who apparently also lived in the same neighborhood, and proceeded in an automobile driven by the defendant to a stream near Stollings, in Logan County, to hunt for fishing worms and to fish in that stream. After they arrived near the stream the defendant told the prosecutrix and the boy to leave him and Kay and to search for worms. While the defendant and Kay remained together and after the prosecutrix and the boy had gone some distance from the defendant the prosecutrix noticed that he felt the chest of the other girl. Shortly afterwards, the group having again come together, the defendant took the prosecutrix into some weeds or bushes near the bank of the stream, caused her to lie down and raised her dress. She pulled down her underclothing and he opened his trousers and lay on top of her.

The prosecutrix testified that her legs were spread apart; that the defendant placed his male organ between her legs and that its contact with her caused her pain in her female genital organ. While he and the prosecutrix were lying on the ground and he was moving up and down on top of her three men on the opposite side of the stream who had noticed the defendant and the children and whose suspicions had been aroused by his conduct, crossed the stream, came within a few feet of the defendant and saw him while he was on top of the prosecutrix. They testified in effect that the girl's legs were spread apart; that the defendant's male organ was exposed and rigid; and that they heard the girl cry out that his acts while lying on her hurt her. When the defendant became aware of their presence a few feet from him he jumped to his feet the prosecutrix ran from the scene. The three men followed the defendant to his automobile which was parked nearby. Two of the men remained to watch the defendant and the third man went to notify the police. The defendant entered the automobile, drove it from the scene and proceeded to his home where he arrived shortly after noon. His wife, who testified as witness in behalf of the State, stated that upon his arrival at his home he was pale and noticeably nervous. After the defendant had left the scene the prosecutrix again saw Kay and the two girls walked together toward their home, at which time, according to Kay, the prosecutrix was crying. On the way they were met by the wife of the defendant, who had sent her to get the girls, and they were taken by her in an automobile to the home of the defendant.

After the police were notified two state troopers went to the home of the defendant, informed him of the charge against him, and placed him under arrest. They also took the prosecutrix and the defendant to police headquarters and obtained a written statement from each of them. The prosecutrix and the defendant were also taken to the Guyan Valley Hospital in Logan and each was examined by a physician at that place.

When the defendant was first questioned at police headquarters he denied the charge but later in the afternoon he made a written statement which he insisted he did not do until he had been struck by one of the officers. In that statement he said that he made it of his own free will without any threat or promise, that 'Me and the kids were out to Stollings, we were fishing and we went to get some worms, me and Billy Lou. Billy Lou went with me to get them. We went over in the bushes and I told her to sit down and then I told her to lay down. I told her to pull up her dress and pull down her pants part way down. Then I took out my peter and put it between her legs and started going up and down, and then the men came from above us and one of them had a rock and said that * * * I should be killed for doing a thing like that. They went back to the car and he told the other two men to watch me, and then I jumped in the car and drove around to look for the girls, then I went home and then I sent my wife and brother's boy after the girls.' After the trooper who took the statement testified that the defendant had not been struck or threatened or induced by any promise to make the statement, it was introduced in evidence.

The prosecutrix testified that after she and the defendant went into the bushes he made her lie down, 'made me take my pants down and then he pulled out his private.'; that he opened his pants and 'Then he stuck his privates close to my privates and started going up and down' between her legs; that while he was on her she felt pain in her privates; and that she said 'Oh, that hurts.' just before the three men came to them. She also testified that on other prior occasions he had 'bothered' her in the same manner but that she had never before engaged in such conduct with any other person.

The doctor who examined the prosecutrix at the Guyan Valley Hospital during the early afternoon of the same day stated that he specifically examined her genitals; that he found no bruises, no bleeding and no laceration; that the hymen was intact; that he obtained a vaginal smear with an applicator inserted through the opening of the hymen into the cavity of the vagina and that the smear showed prostatic secretion. He also testified that for such secretion to get inside the hymen it would be necessary for the male organ to come in contact with the sex organ of the female; and that the external lips would have to be parted and there would have to be contact. In answer to the question: 'Doctor, having in mind the fact that you found prostatic secretion inside of the vagina, what would be your opinion, if you have any, upon the question of whether or not the male organ penetrated between the outer lips of the labia of this young girl?', he said: 'In my opinion it has.'

Though in his testimony the defendant denied that he had penetrated the female organ of the prosecutrix, he made this admission: 'Well, I had my thing between her legs, I asked her to pull her dress up and instead of pulling her dress up she pulled her pants down and I put my thing...

To continue reading

Request your trial
41 cases
  • State v. Davis
    • United States
    • West Virginia Supreme Court
    • March 25, 1986
    ...156 W.Va. 409, 194 S.E.2d 174 (1973); Syl. pt. 2, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971); Syl. pt. 6, State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962) overruled on other grounds Syl. pt. 6, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975); Syl. pt. 4, Sta......
  • Hollen v. Linger
    • United States
    • West Virginia Supreme Court
    • November 29, 1966
    ...148 W.Va. 500, 135 S.E.2d 603; Maynard v. National Fire Insurance Company of Hartford, 147 W.Va. 539, 129 S.E.2d 443; State v. Vance, 146 W.Va. 925, 124 S.E.2d 252; Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186; State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178, 107 S.E.2d 503......
  • State v. Eden
    • United States
    • West Virginia Supreme Court
    • July 10, 1979 the Commonwealth of Virginia, the right of presence being secured by statute in Virginia since 1849. Blair, supra; State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962), Overruled on other grounds, State ex rel. Grob v. Blair, 214 S.E.2d 330, 337 (1975). Unchanged, it now appears in W.Va.......
  • State v. Plantz
    • United States
    • West Virginia Supreme Court
    • April 27, 1971 evidence, to determine that such confession was voluntarily made. State v. Fortner, 150 W.Va. 571, 148 S.E.2d 669; State v. Vance, 146 W.Va. 925, 124 S.E.2d 252; State v. Bruner, 143 W.Va. 755, 105 S.E.2d 140, certiorari denied, Bruner v. Adams, 358 U.S. 937, 79 S.Ct. 328, 3 L.Ed.2d 309,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT