There is a slight error in our original opinion where it is stated that on direct examination prosecutrix gave evidence favorable to the State but changed her testimony on cross-examination. In fact she did not change her testimony on cross-examination, but the next morning she was called back to the witness stand by appellant and she then retracted all of the criminative evidence given by her theretofore against appellant.
In its motion for rehearing the State urges that evidence introduced by the State supports the child's testimony first given in favor of the State, in that it shows non-access of any male person save appellant to the child within the period of four or five hours prior to the time the doctors examined her, said doctors having testified that the spermatozoa found in her privates could have been emitted there within such time.
Giving full effect to the State' argument we still find ourselves in such uncertainty of mind from the entire record that we cannot reconcile it with our duty to permit the conviction to stand.
The child's evidence in some respects fails to stand up both when testifying for the State and against it. In her testimony given in the first instance she affirmed that her father had intercourse with her four times within a period of forty minutes. As said by one of the doctors who testified, that would be abnormal. It staggers credulity and is not supported by human experience. On the other hand, when she retracted her *Page 504 former testimony and swore positively that her father never had intercourse with her at all on the night of January 1st, she also asserted that no man or boy had intercourse with her on that night or day, and had not since before Christmas, which was in positive contradiction to the presence of live spermatozoa in her person. One of the attorneys who had been appointed by the court to represent appellant testified that when he and his co-counsel in the mother's presence had talked to the child on the morning of the second day of the trial and before she was called back to the witness stand, she then told them appellant had done nothing to her but that a boy had had intercourse with her on the evening or night of January 1st.
In addition to the authorities cited originally we refer to others. We quote the following from 18 Texas Jur., Sec. 308:
"* * * Always it must be remembered that the guilt and innocence of the accused are not the only alternatives — the evidence may be such that, while it does not leave the accused free from the suspicion of guilt, it is still short of that required to establish the fact of his guilt beyond reasonable doubt. He is then entitled to a verdict of acquittal, just as he would be if the jury were clearly convinced of his innocence. * * *"
We quote from Smith v. State, 86 Tex.Crim. Rep.,217 S.W. 154, a rape case:
"* * * A witness may be contradicted by other witnesses, and yet be telling the truth, and be believed; but when the witness deliberately and under oath admits that, in relation to the very matters about which she is now testifying, she testified not long since directly to the opposite and contradictory of her testimony in the instant case, one is not only unable to decide which is true, but doubt is engendered as to the truth of either statement. * * *"
In Railsback v. State, 103 Tex.Crim. Rep.,280 S.W. 777, it is said:
"* * * Up cross-examination, this witness repudiated all of this testimony and swore that he did not see the appellant give any whisky to any one, and did not see him with any whisky; but that he saw some whisky in the car, which belonged to Hamm, Summers, and himself. This witness, also on cross-examination, testified that he did not give appellant a cent of money.In fact he swore both ways on the main point relied upon by theState for conviction in this case."
The opinion then proceeds with a quotation from Hill v. State, 55 Tex.Crim. Rep., 117 S.W. 135, as follows:
"* * * We are unwilling to sanction a judgment upon a *Page 505 record of this character. The accomplice had sworn positively both ways, and in his latter statement, that he had committed perjury in placing appellant at the scene of the theft, and that the truth is appellant was not there. This evidence comes in entirely too questionable shape to form the basis for the incarceration of men in the penitentiary. * * *"
Our conscience does not permit us to let a judgment of conviction stand upon a record containing the contradiction found here.
Believing our original opinion properly disposed of the case the State's motion for rehearing is overruled.
Overruled.