Appellant again insists that the testimony of the girl, Ethel *Page 73 Boyd Walker, was so incoherent and unsatisfactory that same does not comport with human experience to such an extent that it is worthy of belief; that because of such testimony being all that is present relative to the act of intercourse and filled with contradictory statements to such an extent, that this cause should be reversed upon the facts alone.
True it is that this girl, 13 years old at the time of the alleged occurrence and 14 years of age at the time of the trial, was vague and indefinite in some of her testimony, especially as to how it was claimed appellant penetrated her private parts and the position of the parties at such time, as well as some other details of what she described as "the struggle." However, it is shown that she was present in the streets of the town of DeKalb at or near the midnight hour with another little girl; that appellant was also present at or near the same place at that time, driving rather aimlessly about in his car; that a witness places appellant near where these two little girls were, and gave damaging testimony probably useful in showing the trend of appellant's mind at such time; the further fact that it was shown that appellant's car had been parked at the place described by the girl as where the assault took place; the further fact that there was a blister on the girl's leg where she claimed her feet or legs had been tied; and the further fact that soon after reaching her sister's home a doctor examined her and found that her parts had recently been penetrated; all these facts, taken together with her positive and repeated identification of appellant as the person committing the assault upon her, were sufficient to allow a jury to predicate thereon a verdict of guilt. Unless this court is convinced of the insufficiency of the testimony, we would not be justified in holding the same insufficient. We have again examined the statement of facts and feel that we would not be justified in holding the facts herein proven to be insufficient as a matter of law.
We have again gone over the bills of exception and think they were properly disposed of in the original opinion, and we adhere to the views expressed therein.
The motion for rehearing is therefore overruled.
ON APPELLANT'S SECOND, MOTION FOR REHEARING.