This appeal is from a conviction of the crime of rape committed upon Emma Klapp, a female child nine years of *292age. It is founded mainly upon the testimony of the child, which is uncorroborated'except in the fact that in some way the private 1 parts of the child had been injured. We will not here recite the ■ evidence ill detail, as it will be given by the reporter. Suffice it to say that, in our opinion,' the evidence for the prosecution is to our minds unsatisfactory. It does not meet the demands of the law in cases of this character.

The testimony of the child is in many respects open to suspicion. Her tender years rendered her susceptible to the influence of malicious and designing persons, and it was shown that her father and the defendant were not upon friendly terms. She testified through the medium of an interpreter, stating that she could not speak the English language, but could only speak the German language, and yet she detailed conversations which she had had with the defendant, who, it was proved, could not speak the German language. She made no outcry when she was outraged. She made no complaint of the outrage for more than three days after it occurred. She went about and played with other children as usual. Ho traces of the outrage were discovered upon her clothing, nor did her appearance and demeanor indicate that she had been injured, except ■ that upon examination, on the fourth day after her alleged injury, her private parts were found to be swollen, sore, inflamed and somewhat lacerated, as if they had been penetrated by the male organ. The place where she located the commission of the crime was a room in the second story of defendant’s house, which house was in the city of Dallas, adjacent to other houses which were at the time inhabited, and very near also the house of her father. Defendant’s house was lightly constructed of wood, and a noise in one part of the house would pervade the whole building. She stated that the crime was committed about 4 o’clock, P. M., on Saturday, the 21st of February, 1885. During the whole of that evening defendant’s wife and a servant woman were in and immediately about the house; heard no noise up stairs — did not see the child on the premises, and did not see the defendant there from soon after dinner until supper time. So they testified.

The mother of the child did not observe that anything was wrong with the child until Wednesday, the fourth day after the alleged outrage. She noticed blood spots on the bed where the child had slept on Sunday, Monday and Tuesday mornings, but, strange to say, did not inquire into, or make any examination to ascertain the source or cause of such spots. A physician, Dr. Gibbs, made an ocular examination of the child’s private parts on the fifth day *293after the alleged rape. He testified that on the day previous Dr. Ball had made a digital examination of the child’s private parts. Dr. Ball was not produced as a "witness by the prosecution, nor Í5 any reason given why he was not produced. It is reasonable to conclude that Dr. Ball’s testimony would have been more definite and satisfactory in regard to the nature and extent of the injuries, and their probable cause, than is the testimony of Dr. Gibbs, from the fact that Dr. Ball made the first and the more thorough examination. His testimony, if attainable, should have been produced by the State. In a case like this the State should not stop short of adducing all the evidence within its reach which is calculated to throw light upon the transaction and develop the truth. (Gazley v. The State, 17 Texas Ct. App., 277, and authorities there cited.)

In view of the unsatisfactory evidence of the State; the exculpatory evidence of the defendant; the singularly lenient punishment assessed, indicating that the jury were not fully satisfied as to defendant’s guilt, and the newly-discovered evidence set forth in defendant’s motion for a new trial, we think the court below erred in refusing the defendant a new trial; and because of such error the judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered November 11, 1885.]