Appellant’s conviction was for rape and punishment fixed at 5 years’ confinement in the penitentiary.
The state’s theory is that the offense was committed against a child 9 years of age. Appellant had been living some years with the mother of the child, first in Mexico and later in Bee county. There had been no marriage, but they had lived together as husband and wife. This woman testified that she had thought of quitting appellant and said:
“I had made up my mind of ridding myself of him. I had thought of going with my home people, living at Granger, Texas. I have never written to my people from here. I never thought of doing anything that would put my husband in trouble in order to get shed of him.”
Appellant at the time of the alleged offense was clearing land for Mr. Young. He, with his family and a man by the name of Miguel Verdines, were occupying a house on Mr. Young’s premises, and had been doing so for a short time. The little girl, who could not speak English, testified through an interpreter. There was evidence that a shallow hole had been dug in the ground near where appellant was grubbing land, which appeared to have been recently made, though by whom is not shown. The little girl claimed that she was at the place, or near the place where appellant was at work, and that he threatened to kill her and put her in the hole if she did not do what he wanted. We quote from her as follows:
“He first put his finger in me and pulled down his pants, but he didn’t put anything in me, but he didn’t put his paloma in me. No, sir, he didn’t put his paloma in me, only outside.”
At this stage the district attorney asked some leading questions with permission of the court, endeavoring to show by witness that there was penetration. Responding to the leading question, she said:
“No, he only took my pantlets off.. Yes, he brought me up to him, but he put his paloma (Mexican word for penis) on the outside and not in.” Question: “Didn’t he put it in you and hurt you.” Witness: “No.”
The district attorney suggested that some one had been tampering with the witness, and had the jury withdrawn in order that he might examine the witness in the presence of the court, in the absence of the jury. Whereupon she was asked who had talked to her and told her to say that appellant did not put his penis in her. Replying to this question, she said: “No, sir; only outside. Yes, sir; only on the outside.” The district attorney then asked why she had told him in the grand jury room that he had put his paloma in her. She replied, “I told you also that he just put that on the outside, and not inside at all.” He put his paloma against her little thing. Did put it in her, only outside; up against her. The district attorney, with the permission of the court, over the objections of appellant, took the witness and the interpreter outside, and out of the presence and hearing of the defendant and his counsel. She returned and testified:
“Yes, sir; he took me and pulled down my pantlets. Yes, sir; his paloma entered just a little of the lips of her privates. He told me that' if I said it that he would kill me and bury me in that hole. Anyway, I was going to tell mama. Yes,- sir; I told her, told her right of way, just as soon as my mama come there. She come out there to bring the breakfast.”
On cross-examination she said:
“He put his finger in me. I called to my mother, and my mother didn’t hear me. He pulled down his pants,- and he put his legs over on top of mine. He put his hand on my mouth so I couldn’t call, then he brought me up against him and opened my legs and put his finger in there- and put his paloma a little bit in there. I saw his paloma. He was inside, between my legs. He never did put it in there, only on the outside.”
She further said:
“No ; he did not hurt me. When he put his finger in there it hurt me. No, he didn’t put his paloma in there, only on the outside. No; it didn’t hurt me; yes, it did hurt me.”
On redirect examination this question was asked:
“Now, it was when he just put a little of his penis in there that it hurt her? A. Yes.”
On recross-examination she said, in answer to the following question:
*947“Didn’t you say a while ago that his paloma didn’t enter at all; that it was on the outside of you?” A. “Yes; that is the truth. I believe that he didn’t put it in, only outside.”
The child’s mother accused appellant of the offense at the time she took his breakfast to him. Officers were called for and arrested appellant, who made no effort to escape. One physician examined the little girl on the same day, and said that the hymen was lacerated and torn, but no marks of violence, no bruises. The hymen had recently been torn and lacerated. We quote from him as follows:
“From the examination I made, and from my knowledge as a physician, I would not attempt to say that this little girl had been penetrated. The hymen being broken was no evidence of penetration. The laceration denotes that there had been an entrance to this part that was torn. Something had been inserted. It could have been made with the finger, a piece of metal, or a stick.”
He claimed that the laceration of the hymen was no evidence of rape. He saw no blood. That there was a serio-sanguineous discharge on her drawers, but saw no evidence of violence on her person other than already stated. There was very little signs; no blood; nothing but the serio-sanguineous discharge. Another doctor, who later examined the child, said that he found the hymen practically normal. No laceration or anything; that the hymen was intact, showing no evidence of laceration; that it was a peculiar type, which he described as foEows:
“This little girl has the fimbrame hymen, that is, one with notches, and after a certain time it would be possible, in many cases, unless a thorough examination is made, to mistake these notches for artificial abrasions. In a fimbrame or notchy hymen, quite often the mistake has been made of thinking that this was a ravisher’s abrasion, instead of a natural abrasion. A fim-brame or notchy hymen may be taken for a lacerated hymen, and great care should be taken in the examination of a hymen for laceration.”
He stated that the hymen could be lacerated from many causes. He said that the laceration of the hymen would cause hemorrhage. There was an absence of evidence of hemorrhage. Appellant testified and denied the offense. He admitted that the little girl was out where he was at work, and that he had given her a switching on account of some disobedience. The other occupant of the house was working nearby, but knew nothing of the occurrence.
[1] Penetration is an element of rape, and must be proved beyond a reasonable doubt, though such penetration need not be of any particular depth. Johnson v. State, 27 Tex. App. 163, 11 S. W. 106; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; P. C. art. 1067; Word v. State, 12 Tex. App. 183; Wilson v. State, 17 Tex. App. 537; Duckworth v. State, 42 Tex. Cr. R. 75, 57 S. W. 665. Prom Blair v. State, 56 S. W. 622, we quote as follows:
“Appellant was convicted for rape upon a female under the age of 15 years, and Ms punishment assessed at confinement in the state penitentiary for a term of 5 years. In the view we take of this case, we only deem it necessary to consider one question. The testimony of the prosecutrix in the first instance, is in favor of the theory of the state. Then immediately she denies in toto the truthfulness of this statement, and states that appellant did not have carnal intercourse with her at any time. This leaves the record before us in such condition that we cannot permit the verdict to stand without other proof on the question of penetration, which is an absolutely essential requisite to all prosecutions for rape. See article 637, Code Cr. Proc.; Davis v. State, 43 Tex. 189.”
See, also, Draper v. State, 57 S. W. 656.
Because the evidence is not sufficient to support the verdict, the judgment is reversed, and the cause remanded.
[2] The bills of exception cannot be considered because filed too late. The evidence we regard as insufficient to prove penetration beyond a reasonable doubt. As a consequence, the judgment of the lower court is reversed, and the cause remanded.
PREND ERG AST, J., dissents.@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes