The motion for rehearing in this case is based largely upon the fact that the original opinion stated that the ten year old prosecuting witness filed an affidavit which was presented with appellant's motion for a new trial, that in this she repudiated her testimony given on the trial of the case, but that when she was called as a witness she did not follow up the statement in her affidavit. The motion for rehearing challenges the correctness *Page 155 of this statement and quotes that part of her evidence upon which reliance is had to support the challenge.
A part of her testimony in the statement of facts on motion for new trial is consistent with the affidavit and then, upon further questioning, the evidence is practically the same as that given in the original trial and contrary to the affidavit. We refer to that part quoted in the original opinion.
It is difficult for us to reconcile all of her statements but the trial court did do so by his refusal to grant a new trial. A question of fact was passed upon by the trial court and it is not within the province of this Court to set his finding aside so long as there is evidence to sustain it.
The evidence of Dr. G. L. Gray, on page 36 of the statement of facts on motion for new trial, is quite convincing. No doubt it played an important part in appellant's motion for a new trial. We cannot say that it did not sustain the order overruling the motion. Further than that we need not go.
The motion for rehearing is overruled.