On Motion for Rehearing.
LATTIMORE, J.The state most earnestly urges that we erred in our reversal of this case. Prosecutrix gave birth to a child January 26, 1923, whose paternity she ascribes to an incestuous act of intercourse had by her with appellant either the last of April or first of May, 1922, which act she insists was the first, last, and only act of. intercourse ever had by her with any person. The doctor who attended her at the birth of her child was a witness for the state, and testified that the period of gestation was normally 280 days, with a variation of 10 days each way. Mathematical computation of 280 days back from January 26,' 1923, would bring ns to' April 21, 1922. Conceding this to be a normal case as to the period of gestation, the act producing pregnancy would have occurred within a 20-day period covering from April 11 to May 1, 1922. The most that can be said from the testimony in this case, aside from that of the unfortunate girl, was that she was at appellant’s house two or three days during this period and near its close. There is some doubt east upon the question whether she was there during said 20-da.y period or not. Two ladies testified for the defense that during the time she was at appellant’s home, she attended a meeting of some kind of a club with appellant’s wife, and the date of such attendance is fixed by these two ladies as Thursday, the 4th of May, 1922, one of the women in question having kept the minutes of the meeting and made a note of the date. However, we do not regard this as a serious extension of said 20-day period, though it might be looked to as a circumstance. That prosecutrix was alone with appellant while at his house, on the occasion referred to, appears from no other source than her own testimony. Where was she and with whom during such time is otherwise left to conjecture. Looking further to ascertain if possible where she was and with whom she was during the remainder of said 20-day period, we observe that she lived near the town of Era, which, she says, has a good many people in it, and that she attended school at said town, which school closed on Friday before the Wednesday or Thursday of this alleged act, or in other words, said school closed about April 24th or 25th. We thus have her in school about or quite two weeks of this 20-day period, and naturally associated with the boys and men incident to school life, and the going to and from school. Where was she from the closing of school during the period of approximately a week before she went out to appellant’s house? That she was in Era, at the home of another uncle, viz., Lewis Masten, at the time appellant came for her to take her to his house on the occasion of the alleged act is affirmed by her in her testimony. Neither Lewis Masten nor his wife nor any member of that family testified on this trial. How long was she at Lewis Masten’s on this visit? Whom did she see or have opportunity to see on said visit? In other words, the state seems to_ place reliance on a process of exclusion in an effort to show that appellant had access to her, and that this must be considered as a corroborative circumstance pointing to him as the guilty party. 'Such process would be entirely proper, and, if it could be carried far enough, ■might furnish corroboration. One excluded by proof from access to but a particular man for a sufficient length of time, • at the begin*369ning of a period of gestation, might by this proof be supported in a claim that such man had cohabited with her and was the father of her child; but when it appears that during such period her position was such as that she might have been approached by any one of a number of men, something more than mere opportunity must be proved. Indisputably, in the investigation of a question like this, the woman’s attitude of favoritism- toward one man or a more frequent association by her with one than with others might be looked to, but nothing of that kind appears in this record. There is not the slightest testimony here of any former fondling or undue familiarity or attempts to acquire improper influence with prosecutrix on the part of appellant than there is with Lewis Masten or any of the other men with whom she had an acquaintance. Nor is there any attempt to show that as a result Of his successful effort on the occasion in question appellant ever again tried to accomplish such -evil purpose, or ever suggested to prosecutrix or did anything seen by any one to indicate that he desired to follow up his successful effort.
We also observe that the girl testified that she went out to a picnic on Blocker creek after school closed in the spring of 1922, and she named the young men and women in the group who were with her. The state introduced most if nqt all of these, and they swore that neither prosecutrix nor any of them were guilty of misconduct on this occasion. 'Prosecutrix also swore that she attended a party at Mr. Scott’s after school closed and before the picnic referred to. She says a good many people were at this party, but no one testified as to her conduct at the party, or how many men were there, or how late it broke up. It is true, the state introduced the father, mother, brother, and one sister of the prosecutrix, and also five who were at the picnic on Blocker creek, and these all deny knowledge of any wrong-doing on her part, and testify that she had had no young men .company, had no dates with men, and seemingly went as -far as truth would allow them in their effort to narrow the opportunities of other men to have intercourse with prosecutrix and thus to corroborate if possible the conclusion of guilt on the part of appellant. We have most earnestly searched this record for some fact aside from the testimony of this' unfortunate girl which would individuate this accused and point to him as guilty of this crime, but have not been able to find any circumstance which would point to him more strongly than to any other. If mere presence in the house of one uncle could be relied upon as a circumstance for corroboration, how could this court say that such presence in the house of another uncle would not have the same effect? We have not discussed the proposition as to whether one act, accompanied by no bloodshed,, no discoloration even on undergarments, no outcry,’ no report of assault, no complaint, could be considered as rebutting the guilt of this accused, for these would be questions for the jury, but certainly the state must be able to point to some circumstance either prior or subsequent, at or about the time of the alleged occurrence, indicative of the guilt of the accused, ox* of a course of conduct on his part leading up to such act, in order to furnish some kind or character of corroboration, but the record before us is bare of such circumstance. The truth seems to be that, aside from the testimony of the girl, the facts go no further than to show opportunity arising solely from her presence in appellant’s home. To hold this corroboration, as above remarked, would point with equal force to every man whom she was with at any time during the 20-day period referred to by the doctor, and to so hold would be a dangerous proposition, and would empower any woman to lay her shame at the door of any man with whom she could prove by others she had been on some occasion about the time of the beginning of a period of gestation. This is not what we undei-stand the statute contemplates nor the decisions lay down as the law.
The motion for rehearing will be overruled.