The State has filed a motion for a rehearing herein, and urges that the age of the girl, Willie Joe Winchester, was not made an issue in the trial of the case; that the age of this girl was not disputed in this trial. While this matter may not be free from doubt, nevertheless we think a charge should be given by the trial court to the jury relative thereto in the event of another trial.
The girl who was alleged to have been raped by Jim Johnson, a negro man, when first placed upon the stand, testified to an act of intercourse upon her part with this man. Upon her cross-examination she repudiated this testimony in its entirety, and claimed to have been frightened into making such statement, and upon her redirect examination she again asserted the truth of her previous direct testimony, and implicated her step-father as well as Johnson, the negro. Again she was questioned upon her re-cross-examination, and therein repudiated the incriminatory statements she had just given before the jury while being questioned by the State, thus leaving her testimony in a very unsatisfactory condition. It is evident that this witness' testimony had been tampered with by some one, and she was laboring under fear to such an extent that her testimony could not be relied upon to any great degree.
It is then observed that the negro, Jim Johnson, who testified for the State, was an accomplice, and was charged with the same offense as this appellant. As such an accomplice, necessarily his testimony, which implicated appellant in this offense, should have been corroborated by other testimony tending to connect this appellant with its commission. The State was forced to rely upon the girl's testimony for corroboration of the negro, and in the unsatisfactory condition that the little girl's testimony is in, with her affirmance and immediate denials, we confess we are not able to find any corroborative testimony of that of the negro that would lead us to say that the appellant solicited this negro to have intercourse with this girl, nor that *Page 543 appellant was present at the time the negro says the act of intercourse with the girl took place. The whereabouts of the appellant during the negro's presence in the little girl's room should have been shown if possible.
Paragraph four of the court's charge should not have been given, but the first paragraph six was a correct exposition of the law applying to the doctrine of principals.
In the event of another trial hereof the girl may be able to give a more lucid explanation of the matters here at issue, but under her present testimony no substantial reliance can be placed upon her statement.
We see no reason to recede from our views expressed in our original opinion. The motion will be overruled.