A motion for new trial having been made and the same denied, the defendant excepted, and we are called upon to review this motion.
The plaintiff was indicted for the offense of rape, and found guilty, and the motion claims that this verdict is not sustained by the evidence, and so it- appears to this court.
1. In a criminal case, the testimony which is necessary to produce a conviction must be so strong and satisfactory as to exclude from the minds of the jury every reasonable doubt as to defendant’s guilt. Penetratio corporis ei *626emissio seminis was required by the old law to be proved, but slight penetration is sufficient. 54 Ga., 4-10.
This case, as shown by the evidence, leaves it not only doubtful as to the guilt of the accused, but the weight and preponderance of the testimony show that he is not guilty of the offense with which he was charged.
2. When the foundation was laid to impeach two of the státe's witnesses by asking them if they had not testified to certain material things before the court of inquiry, the court refused to allow the presiding justice in such court to prove that these witnesses had so testified before such commiting court, contradicting what the witnesses testified to at the trial before the superior court, because the testimony had been taken down in writing before the committing court.
We think this was error. What a witness may have testified to can be proved, in such a case, as well by one who heard it as by the notes or memorandum of the evidence taken down by the court. See Williams vs. The State, 69 Ga., 11. This differs from an approved record, where all the facts are taken down and scrutinized by the counsel for the parties, and approved by the court, and become a matter of record. It also differs from a voluntary statement made by the accused before a committing court, which the law requires the magistrate to take down in writing and return to the superior court. Cicero vs. The State, 54 Ga., 156.
The loss or absence of the testimony taken by the committing court was shown in this case. Under the law, such brief is required to- be furnished for the guidance and convenience of the solicitor general.
Judgment reversed.