ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.The State urges in its motion for rehearing that the doctor’s evidence as to the result of his examination of prosecutrix leaves no doubt of the penetration of her privates. This may be conceded, but even then only part of the burden resting on the State has been discharged. For appellant to be guilty of rape such penetration must have been effected with his privates. What appellant said about the occurrence is set out in our original opinion to which reference is made without a repetition here. In our original opinion we said his statement, in our judgment, amounted to a denial of penetration. It would have been more accurrate, perhaps, to have said that his statement was ambiguous. He said that when his wife called him he was “playing” with the little girl. Just what he meant is speculative. It surely fell short of an admission that he had penetrated her private parts with his privates. The res gestae statements of the child made to her grandmother also leave uncertainty upon this crucial point. With the utmost sympathy and understanding for the reasons which moved the State to refrain from calling *384the little girl as a witness, there remains the conclusion that uncertainty regarding the point at issue could have been cleared away had the little girl told her story about the assault. No doubt she could have told what appellant was doing with his hands at the time appellant said he was “playing” with her, and thereby excluded the possibility that penetration may have been effected with appellant’s fingers.
The old rule, now abandoned, was that circumstantial evidence was not receivable where positive evidence was available to prove a fact. (See authorities cited in Note 11, under Sec. 318, page 440, 18 Tex. Jur.) The text epitomizes the present trend of our holding thus:
“Apart from the viewpoint that circumstantial evidence is incompetent where direct testimony is available and not produced, the appellate court has frequently treated the case as one of reasonable doubt where, for aught that appeared, there was available to the state testimony throwing additional light on the facts, especially in cases of the absence of testimony to show the basic facts.” (Italics ours).
The following cases are cited supporting the text: Buford v. State, 112 Tex. Cr. R. 593, 17 S. W. (2d) 1072; Wilkie v. State, 83 Tex. Cr. R. 490, 203 S. W. 1091; Scott v. State, 19 Texas Cr. App. 325; Rodriguez v. State, 5 Tex. Cr. R. 256; Griffith v. State, 9 Tex. Cr. App. 372.
Believing proper disposition of the case was made originally, the State’s motion for rehearing is overruled.