The offense is rape; penalty assessed at confinement in the penitentiary for life.
The prosecutrix, Deverne Armistead, is the daughter of the appellant. At the time of the commission of the alleged offense she was a little more than nine years of age and was living with her father and mother. She was attending school and was in the second grade. Testifying for the State on direct examination, she charged the appellant with having had sexual relations with her while they were alone on an oil lease near the town of Wink. However, upon cross-examination by the appellant she testified that she had sworn falsely and said that her father had been guilty of no improper conduct towards her. She assigned as a reason for having charged appellant with the assault upon her the fact that she had become angry with him because he was spending all of his money for whisky and often became drunk. Suffice it to say that upon her redirect examination by the District Attorney she maintained that appellant was guilty of no misconduct towards her and that she had sworn falsely against him upon her direct examination. In connection with her retraction of the testimony which she had given against the appellant, she charged that several boys, who she was unable to name, had been having sexual relations with her prior to the time she visited the oil lease with the appellant.
The physicians, who examined the prosecutrix after she had reported that appellant had assaulted her, testified that her female organ indicated that she had been having sexual relations for some time. They also expressed the opinion that she had recently had sexual intercourse, basing such opinion upon the fact that semen was found in her vagina. They were unable to determine definitely how long it had been since she had had connection with a male. Again, they testified that her female organ was enlarged to the extent that two fingers could be inserted into the vagina.
That the testimony in the present case, including the retraction of the prosecuting witness, is insufficient to support the conviction is supported by many precedents. Among them are Gazley v. State, 17 Texas App., 267; Petty v. State,249 S.W. 849; Galaviz v. State, 82 Tex.Crim. Rep..
In the case of Blair v. State, 56 S.W. 622, in which the *Page 503 facts were similar to those in the present instance, this court said:
"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 Stevens v. State, 121 Tex.Crim. Rep.; Dodson v. State, 83 S.W.2d 992, and cases cited there. Many other opinions of this court are in accord with the above.
The judgment of the District Court is reversed and the cause remanded.
Reversed and remanded.