State v. Burton

At a Court of Oyer and Terminer held at this term, Joseph G. Burton,alias Joseph G. Green, a young negro man, was indicted and tried for a rape committed on the body of Hannah M. Lank, a young white girl between thirteen and fourteen years of age, in Lewes and Rehoboth hundred, on the 24th day of March preceding. She was living in the family of her uncle, James Lank, which resided on a farm a half mile from Rehoboth Station, on the Junction and Breakwater Railroad, where he was keeping store; the shortest way, and the one generally used by persons on foot passing between the farm and the station, being simply a well-beaten path leading nearly the whole distance through woodland and across two small rivulets, from two to three hundred yards apart, and between which the growth of wood and timber was denser than in any other part of it.

In her testimony she stated that she left the farm that morning about nine o'clock to go to the store of her uncle at the station, and reached it a short time before the morning train from Lewes arrived at the station, and saw the prisoner come into the store while she was in it, but he went out of it about the time the train arrived, and she left it to return to the farm about the time the train was starting again, and she then saw the prisoner coming from the railroad platform towards the store, as she left it and started in the opposite direction to go by the usual pathway from there to the farm. But she met him in the woods between the two branches, when he spoke civilly to her as he passed her walking in the opposite direction; he afterwards, however, turned round and followed her, and overtook her after she had crossed the second branch, and as he came up behind her he threw one of his arms around her and then immediately clasped the other around her and threw her down on the ground, when she commenced struggling with all her might to get away from him, and for an hour it seemed to her, screaming and begging and fighting all she could, till he got her clothes up sufficiently to force and hold them in her mouth and stop her screaming, and by choking her and exhausting her strength, until he finally entirely overpowered her and accomplished his purpose. And to the direct question, she expressly declared that he consummated the rape.

The only question involved in the case was as to the identity of the prisoner with the person who committed it. She herself identified the prisoner as the person, without hesitation, described the person who did it, as of his size and color, with a little short beard on his upper lip, and that some of his front teeth were a little crossed. He had on no coat or vest, but wore a knit shirt of a faded gray color, and dark pantaloons; and that the first time he was brought to the farm that day after his arrest, for her to see him, he had on an outer green and white striped shirt, but the second time he was brought there that day she saw the shirt he had on under it, and it was the same he had on in the morning when he ravished her. The ground where it was done was low, soft and somewhat muddy.

Her aunt's testimony was that she came back to the house very much exhausted, and crying, and at once informed her that she had just been shamefully assaulted and outraged by a black man in the woods on her way back from the store, and that she had been ravished. That her dress was badly torn and very muddy, and that she was so sore and feeble for two or three days afterwards that she could hardly get in or out of the house.

The testimony of her uncle, James Lank, was that both the prisoner and his neice, Hannah M. Lank, were at the store that morning about fifteen minutes before the train reached the station from Lewes, and that she left the store about the time the train started, and he left before her. And the ground where the outrage was committed bore the marks of a violent and protracted struggle between them, for it was trampled and indented in the scuffle with the irregular tracks of feet, heels and toes for a space of over two hundred square feet, and when the prisoner was arrested in a few hours afterwards, the knees of his pantaloons were all covered with mud of the same color as the mud there.

The testimony of Handy Watson, was that he saw the prisoner that morning about an hour after the train had left, on the Pilot Town road going east, and just up the hill beyond the bridge near Rehoboth Station, and that the knees of his pantaloons were muddy, and he was whipping the mud off them with a stick as he was walking along when he saw him.

Nelson Card testified that he was close to Richard's store, about a mile from Rehoboth Station, and saw the prisoner come up the road leading up there from the Pilot Town road, between ten and eleven o'clock that morning, and he noticed that his knees were very muddy, and that before he got up to the store and the corner he got over the fence and crossed the field in a muddy part of it, although the walking was better on the road. And James Welch, that he learnt of the outrage soon after its occurrence that morning, and went with others in search of the perpetrator of it. It had rained enough the night before to soften the ground very considerably even in the woods, and they soon discovered near the scene of it tracks sufficiently distinct to enable them to follow them up without once losing them, although one half of the time they led across fields and the other along roads, until they came up with and arrested the prisoner between three and four miles from there. He denied, however, that he was the man who had committed it.

The mother of the prisoner was the first witness called for him, and testified that he put on late on the Saturday afternoon before that day a light-colored knit shirt, and he had another of a faded light blue color, which was clear and laid away that day at her house. He was twenty-two years old on the last day of February. The shirt he put on on Saturday, and referred to by her, was then proved and put in evidence. And Mr. Rodney Lyons afterwards testified that he saw the prisoner at Rehoboth Station that morning, and that he then had a shirt on like the one put in evidence, and here shown him; and Mr. James Lank being called for the prisoner as a witness, testified that there were a good many persons, both white and black, in his store that morning by the time the train had left that station. that in view of the fact, as had long before been remarked by an able English jurist, that it is a charge easy to be made, and hard to be disproved, and of the great magnitude and vital importance of it to the prisoner, it behooved the jury to be satisfied beyond a reasonable doubt from the evidence in the case, first, that the alleged rape was actually committed and consummated in the case; and if so, in the second place, that it was committed by the prisoner at the bar, by force and against the will of the principal witness in the case, the young girl, Hannah M. Lank. The Court would, however, say to the jury, as had already been said to them by the Deputy Attorney General in opening the case, that to consummate the rape and complete the offense it was not necessary under our statute on the subject, to prove more than an actualpenetravit, but that nothing less than an actualpenetravit would suffice to warrant a conviction of the great crime with which the prisoner was charged.