ON MOTION FOR REHEARING.
KRUEGER, Judge.In his. motion for a rehearing appellant asserts that we failed to fully discuss his Bill of Exception No. 4 in which he challenges the sufficiency of the evidence to justify and sustain his conviction. This seems to be his main and only contention. In order that this opinion may correctly reflect what the record discloses, we will quote the essential and pertinent parts of the testimony.
*429Ietta Freeman, the alleged injured female, testified:
“We went to the show. Frank took me to the show, and he took me down to his house. He laid me down at his house and he put some grease on his thing, and some of that water. * * * When Frank laid me down he put some grease on me and some of that water. He put the grease right there, between my legs. * * * Frank then got on top of me and let his own self down. He put his private parts in my private parts.” (S. F. p. 7).
She further testified:
“It was on the saw dust pile on the railroad track. * * * It was not close to the depot, but it is close to Mr. Funk’s store.”
Will Taylor testified among other things as follows:
“I know Frank Jones. * * * I was in- the home of Dora King at one time when the'defendant, Frank Jones, was present. * * * The little girl made a statement there when I came up and I heard it. Ietta said Frank laid her down and put something on her that looked like grease, * * * and she said she did it in the saw dust pile and down the railroad below the section house, which is in Red River County, Texas. * * * I heard Frank say that he was guilty and he was going to ask the girl’s mother to forgive him. It was last week one day.”
Charlie Brown testified that the injured female was his half-sister; that she was born in 1931; that she was a little better than nine years old.
Dr. C. N. Atkinson testified:
“I know Ietta Freeman, and I recall the time I examined her. It was Monday night a week ago, around about the 3rd. * * * The result of my findings was that she had been interfered with. The hymen was ruptured and it was in a state of irritation and congestion. * * * By saying she had been interfered with I mean she had had intercourse, and I mean by intercourse that her private organ had been penetrated by something as large as a man’s male organ. * * * I would not undertake to tell the jury what penetrated her or who penetrated her.”
Virgie Lee- Gilbert testified that she was at Dora King’s home when Frank Jones was .there and he questioned appellant as to whether he had been with this-little girl; that at first he said, “No” but later said, “Yes”; that he did it: He said it took *430place on the saw dust pile. The witness further stated that appellant was not married to the injured female.
Appellant denied the act and claimed it was a frame up. It may be that the little girl was of low mentality, but she testified to the sexual act in which she is corroborated by the doctor. The mother may be a common prostitute but that did not make her an incompetent witness. There was testimony by other witnesses to the effect that appellant had admitted to them that he had sexual intercourse with the little girl. Of course, on his trial he denied all of it, but this raised an issue of fact which the jury decided adversely to him. .
We hope that we have sufficiently set out the testimony to convince an unbiased mind of the sufficiency of the evidence to sustain the jury’s conclusion of the appellant’s guilt. Appellant cites us to the case of Perkins v. State, 76 S. W. (2d) 135, as supporting his contention. That case was one of rape by force and it has no application here. In the case of Bartlett v. State, 38 S. W. (2d) 103, it will be noted that the doctor who examined the alleged injured female testified that he found nothing to indicate that she had been assaulted, which is not the case here.
Being of the opinion that the case was properly disposed of on the original submission, the motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.