(After stating the facts.) We feel constrained, after a careful consideration of the evidence, to reverse the judgment of the court below denying a new trial, because in our opinion the evidence did not authorize the verdict of guilty. The exact age of the accused is not stated. It-is inferable, however, that he was a boy, because the girl, who was but ten years of age, alludes to him as Boyce, calling him by his first name, and other witnesses who testified referred to him as "this boy.” The girl herself, upon whom the detestable crime is alleged to have been committed, testified that her private parts were not penetrated by the male organ. In fact she repeatedly denied that there was any attempt to perfect an entrance with the male organ. While she testified that he unbuttoned his breeches, she repeatedly stated that he did not take anything out of his breeches after he unbuttoned them, and she swore positively that the injuries which he inflicted upon her were inflicted with the hand. Of course it may be true that shame upon her part would cause her to deny that the injuries to the vagina had been caused by the penetration of the male organ of the assailant. Nevertheless she swore positively that she was not thus penetrated; that the injuries were inflicted by the hand of her assailant. With this positive testimony beforé the jury, denying that her private parts had been penetrated by the male organ, and denying that such an effort was made, the proof of penetration which is essential to the crime of rape depended upon circumstantial evidence entirely. There was a rupture of the hymen; this was a strong circumstance against the accused. But the rule is, in cases depending upon circumstantial evidence, that the evidence must be so strong, in order to authorize a conviction, that it excludes every other reasonable hypothesis than that of the defendant’s guilt. The physician who examined the girl’s private parts, *108and who examined certain stains upon the clothes, testified that while his examination was not very thorough, it did not reveal any indications of semen of the male. There was other evidence to negative the theory of rape in this case, — the proximity of houses; the presence of two other little girls at the time the boy came there, to say nothing as to the boy’s good character. Questions of fact, we know, are for solution by the jury. But where, as in this case, the positive testimony of the only person who had actual knowledge of the facts essential to the crime of rape negatives the existence of those facts, and where the' circumstances as strongly support the hypothesis of innocence as they do the hypothesis of guilt, it can not be said that a verdict of guilty was authorized.
Judgment reversed.
All the Justices concur.