Mr. Justice Ramírez Bages
delivered the opinion of the Court.
Appellant was convicted by the court without a jury of the offense of incest committed on the person of a daughter, and he was sentenced to serve from four to eight years in the penitentiary. In support of his appeal from said judgment he assigns seven errors.
The first six assignments of error center on the prosecu-trix’s paternity, appellant insisting that by reason that her mother was married to another man at the time of her conception and birth, she had the status of legitimate daughter of another man, a circumstance which cannot be challenged in a criminal prosecution.
We need not consider the foregoing question since we conclude that appellant is right as to his seventh assignment to the effect that the version of the facts offered by the prosecu-trix is improbable, unbelievable, and tinged with prejudice and passion. Let us examine that version more carefully.
The prosecutrix testified that appellant was her father; that she was about 17 or 18 years old; that she had been in the Industrial School for Girls; that she gave birth to a [65]*65child in February 1966; that appellant is the child’s father; that she conceived it by appellant because she was living in his house in June 1965; that appellant came to her bed and had sexual intercourse with her; that 15 persons lived in the house, to wit: appellant, the prosecutrix’s stepmother, and twelve brothers and sisters; that when appellant crept into her bed she screamed and cried; that he was “drunk”; that the event occurred between 11:30 and 12:00 p.m. She also testified that the family was sleeping in two adjacent rooms. The stepmother did nothing — the prosecutrix does not know whether she found out, but she must have been aware, since she was in the house. The prosecutrix had been living with appellant and her stepmother for five months. Before, she lived with her grandmother, appellant’s mother. She said nothing of the occurrence because she was not permitted to go out for two months. Then, when appellant realized what he had done, that she was pregnant, he threw her out of the house. She went to her grandmother’s house, who had her examined, and she proved to be pregnant. The grandmother advised her to remain silent. The prosecutrix’s mother took her to court. In 1963 the prosecutrix had eloped with a young man, but they were detained. The young man was sent to his house, and the court ordered her to remain under the custody of her father and her mother. She went to live at appellant’s house subsequent to an argument with her sister in her mother’s house. On the night of the facts her six-year-old sister was sleeping on the same bed with the prosecutrix and another 12 years old, was sleeping on the floor “quite near.” The prosecutrix’s testimony as to how the family was divided in the two rooms is confusing. First she admitted that the stepmother and the girls were sleeping in one room and appellant with the boys were sleeping in the other. Later she corrected it by saying that “He, my little sister and she” were sleeping in one room. The cross-examination continues like this:
[66]*66Mr. Corchado Juarbe:
“And how many sleep in the living room ?
None.
And where do the other children sleep ?
In the other room.
In two rooms ? That is, are there two rooms ?
Yes, sir.
In these two rooms there sleep . . . ?
Yes, sir, because it is divided.
That is, that your room, the room where Arcadio and his wife and you and the other children sleep, is a big room which has a half-wall division ?
Yes, sir.
That it cannot be a full-length division, it is only a half-wall division ?
Yes, sir.
So that in that room only six persons were sleeping, were six persons sleeping there ?
Well, yes.
You three were sleeping and the others, sleeping in one; and the other children were in the other, on the other side?
Yes, sir.
How many were sleeping in the other room?
There are only two rooms; there are three beds in one. Are there three beds in one?
And my father’s. There is only one.
And then, he, and his wife, and the small children sleep there ?
Yes, sir.
Only you sleep in the other one ?■
Yes, sir.
Did you say that there were only two beds there?
In the boys’ room there are three beds.
Do the rest of the children sleep in those three beds; how old are they?
One is nineteen.
One is nineteen?
The other is seventeen.
[67]*67.See, any .... those, were your brothers, yours too?
Witness:
Yes, sir.
Do they sleep there, too?
Yes, sir.
■The others are older, some are younger and the others smaller?
Yes, sir.
Which means that all the fifteen of you were sleeping that night in an area which is not greater than from this door up to here forming a square? Let us say from that door to this .table, to this column ?
Yes, sir.
All of you were there?
Yes, sir.
Judge:
For the purpose of the record, what do the parties determine yras the area covered by the rooms?
Mr. Corchado Juarbe:
We could stipulate that it was about eighteen by twenty-five.”
When she screamed none of the children woke up.
From the cross-examination it appeared, that the prose-cutrix had a grudge against appellant because he did not permit her to go out and because he told her that she, was stealing money from him. They did not speak to each other. When she needed something she asked her stepmother for it.
The cross-examination continues:
Mr. Corchado Juarbe:
“Did you resent his telling to you that he would not allow you to go to your grandmother’s nor to your mother’s house?
I resented it because I was not going to do anything wrong. ' ■
However, had you had any problems of a different nature in the community? ...
(No answer.)
Is that true?
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Mr. Justice Ramírez Bages
delivered the opinion of the Court.
Appellant was convicted by the court without a jury of the offense of incest committed on the person of a daughter, and he was sentenced to serve from four to eight years in the penitentiary. In support of his appeal from said judgment he assigns seven errors.
The first six assignments of error center on the prosecu-trix’s paternity, appellant insisting that by reason that her mother was married to another man at the time of her conception and birth, she had the status of legitimate daughter of another man, a circumstance which cannot be challenged in a criminal prosecution.
We need not consider the foregoing question since we conclude that appellant is right as to his seventh assignment to the effect that the version of the facts offered by the prosecu-trix is improbable, unbelievable, and tinged with prejudice and passion. Let us examine that version more carefully.
The prosecutrix testified that appellant was her father; that she was about 17 or 18 years old; that she had been in the Industrial School for Girls; that she gave birth to a [65]*65child in February 1966; that appellant is the child’s father; that she conceived it by appellant because she was living in his house in June 1965; that appellant came to her bed and had sexual intercourse with her; that 15 persons lived in the house, to wit: appellant, the prosecutrix’s stepmother, and twelve brothers and sisters; that when appellant crept into her bed she screamed and cried; that he was “drunk”; that the event occurred between 11:30 and 12:00 p.m. She also testified that the family was sleeping in two adjacent rooms. The stepmother did nothing — the prosecutrix does not know whether she found out, but she must have been aware, since she was in the house. The prosecutrix had been living with appellant and her stepmother for five months. Before, she lived with her grandmother, appellant’s mother. She said nothing of the occurrence because she was not permitted to go out for two months. Then, when appellant realized what he had done, that she was pregnant, he threw her out of the house. She went to her grandmother’s house, who had her examined, and she proved to be pregnant. The grandmother advised her to remain silent. The prosecutrix’s mother took her to court. In 1963 the prosecutrix had eloped with a young man, but they were detained. The young man was sent to his house, and the court ordered her to remain under the custody of her father and her mother. She went to live at appellant’s house subsequent to an argument with her sister in her mother’s house. On the night of the facts her six-year-old sister was sleeping on the same bed with the prosecutrix and another 12 years old, was sleeping on the floor “quite near.” The prosecutrix’s testimony as to how the family was divided in the two rooms is confusing. First she admitted that the stepmother and the girls were sleeping in one room and appellant with the boys were sleeping in the other. Later she corrected it by saying that “He, my little sister and she” were sleeping in one room. The cross-examination continues like this:
[66]*66Mr. Corchado Juarbe:
“And how many sleep in the living room ?
None.
And where do the other children sleep ?
In the other room.
In two rooms ? That is, are there two rooms ?
Yes, sir.
In these two rooms there sleep . . . ?
Yes, sir, because it is divided.
That is, that your room, the room where Arcadio and his wife and you and the other children sleep, is a big room which has a half-wall division ?
Yes, sir.
That it cannot be a full-length division, it is only a half-wall division ?
Yes, sir.
So that in that room only six persons were sleeping, were six persons sleeping there ?
Well, yes.
You three were sleeping and the others, sleeping in one; and the other children were in the other, on the other side?
Yes, sir.
How many were sleeping in the other room?
There are only two rooms; there are three beds in one. Are there three beds in one?
And my father’s. There is only one.
And then, he, and his wife, and the small children sleep there ?
Yes, sir.
Only you sleep in the other one ?■
Yes, sir.
Did you say that there were only two beds there?
In the boys’ room there are three beds.
Do the rest of the children sleep in those three beds; how old are they?
One is nineteen.
One is nineteen?
The other is seventeen.
[67]*67.See, any .... those, were your brothers, yours too?
Witness:
Yes, sir.
Do they sleep there, too?
Yes, sir.
■The others are older, some are younger and the others smaller?
Yes, sir.
Which means that all the fifteen of you were sleeping that night in an area which is not greater than from this door up to here forming a square? Let us say from that door to this .table, to this column ?
Yes, sir.
All of you were there?
Yes, sir.
Judge:
For the purpose of the record, what do the parties determine yras the area covered by the rooms?
Mr. Corchado Juarbe:
We could stipulate that it was about eighteen by twenty-five.”
When she screamed none of the children woke up.
From the cross-examination it appeared, that the prose-cutrix had a grudge against appellant because he did not permit her to go out and because he told her that she, was stealing money from him. They did not speak to each other. When she needed something she asked her stepmother for it.
The cross-examination continues:
Mr. Corchado Juarbe:
“Did you resent his telling to you that he would not allow you to go to your grandmother’s nor to your mother’s house?
I resented it because I was not going to do anything wrong. ' ■
However, had you had any problems of a different nature in the community? ...
(No answer.)
Is that true?
(No answer.)
[68]*68After you had the incident with Santos, that’s true, is it not?
Witness:
Yes, sir.
Yes, sir?
Yes, sir.
And every time you had that problem this man who is here was the one who had to intervene and call your attention, is that true, also?
Witness:
Yes, sir.
That you hid yourself, you went to your house, is that true? It is not true.
Now, is it true that policeman Meléndez had to look for you there for a long time to bring you back to the Juvenile Home; is that true?
Yes, sir.
Where were you during all that time when policeman Melén-dez was looking for you ?
Me ? I was with a friend of mine.
What is your friend’s name?
I do not know her name.
How many days were you with your friend ?
I was two days with her.
Those two days, were you not in Berdecia’s house ?
No, sir.
Where were you ?
Living with my friend.
Where ?
In her house.
Where is her house?
In Coamo.
■ On what street, what place specifically?
Witness:
In a place called Calle Pulguillas.
Me. Coechado Juarbe:
Where did the policeman find you ?
The policeman found me in Coamo.
Where ?
At my mother’s house.
[69]*69How many times did the policeman go to your mother’s house to look for you, and how many days did he go, or not?
I do not know.
See whether or not it is true that you were more than two days away from your house.
No, sir.
And when policeman Meléndez found you he brought you to the Child Public Welfare Division, to the Office of Public Welfare, is it true or not?
(No answer.)
You do not answer.
And when you say you screamed, did it not wake up the other children?
I do not know whether they woke up.
And your sister was lying there, is that right, the little girl ?
(No answer.)
Tell me, was she from there to where I am ?
Yes, sir.
Mr. Corchado Juarbe:
Approximately one foot?
Witness:
Yes, but the little girl woke up later.
And the twelve-year-old girl who was sleeping on the floor, how far was she from you?
Very near.
Very near?
Yes, sir.
How far were Doña Francisca and the children; were they at a distance like from there, where you are to the Judge’s platform ?
Yes, sir.
At approximately three feet?
Yes, sir.
Was she awake?
I suppose she was awake.
How far from you were your other seven or eight brothers and sisters, who were sleeping in the same house?
(No answer.)
Were they at a distance like from where you are to where I am now, or less ?
(No answer.)
[70]*70Nearer?
More or less like this.
Judge:
What distance do the parties estimate ?
Mr. Corchado Juarbe:
We stipulate nine feet.
Judge:
Prosecuting attorney.
Prosecuting Attorney:
Ten feet.
Mr. Corchado Juarbe:
From nine to ten feet.
Why did your mother take you to the police station?
Well, because ...
Why?
Because I did not mind her.
That you wanted . . . tell the court what you wanted . . . but that you wanted to go out and to be with your girl friend, or is that not so ?
No, sir.
But, a moment ago you said it was so.
Well, because I, I wanted to be with my girl friend, because that is not wrong.
And that, that friend of yours, in what is she engaged, witness ?
Well.
Do you know La Gata ?
Yes, sir.
Is she your friend ?
(No answer.)
Is she or is she not the girl with whom you stayed those two days ? .
Well,.she was, but she.is not any more.
She was your friend, but she is not any more; is she La Gatal Yes, sir.
Is it or is it not true that La Gata was a girl of the place to which . . . who worked in bars?
I do not know.
[71]*71That was what your stepmother and father did not want, that you should go out?
(No answer.)”
When examined by the prosecuting attorney the prose-cutrix testified that appellant “hit me, maltreated me, threw me out of the house ... He accused me of stealing from him.” The trial judge intervened in the examination, as follows:
“Judge:
You said that you screamed. Did anything happen? You answered that you screamed, what happened there, did anything happen, what happened? Explain how it happened.
(No answer.)
You said that you screamed, and that Arcadio, the defendant, Arcadio had sexual intercourse with you. How was that?
When I screamed?
From the beginning. What happened there; whether you were awake or asleep; what happened ?
I was falling asleep when he came to my bed, when I was falling asleep, when he came to my bed; he tore my underwear; I continued screaming, hoping my stepmother would come to rescue me; she did not come; then my father had a revolver which he placed here, and told me that if I did not consent, he was going to kill me.
Judge:
. . . what else happened?
Witness:
Nothing else happened.
You say that he pointed a revolver at you, what else happened ?
He took it away; I said I was going to tell; he told me that if I said anything, if I screamed, he would kill me; and then, some time later, he knew I was pregnant, he more or less had to know it, in the presence of my grandmother he hit me and told me that he did not want me in his house, then, my grandmother received me in hers.
You say, which of your other brothers or sisters was asleep ?
Well, my twelve-ygar-old sister, that is, the six-year-old, the six-year-old sister was awake.
[72]*72During that time did any of them wake up ?
The little one who was with me.
And what happened later ?
Nothing more happened.”
The foregoing is a summary of the entire evidence presented related to the act which gave rise to the prosecution. It shows that the prosecutrix was a corrupted girl, who had had sexual experience prior to the act charged against appellant; that she had escaped from the Juvenile Home where she was confined upon her mother’s request because the prose-cutrix did not obey her. She was found by a policeman in Coamo, in the house of a friend known as La Gata, where she had been for two days. She also had many arguments with appellant when she lived in his house and for that reason she had a grudge against him. These circumstances and attitudes of the prosecutrix render less credible the occurrence of the offense charged against appellant by the former, an occurrence which is highly improbable in view of the circumstances under which, according to the prosecutrix, said act was consummated. Her evasive and confused manner of testifying, her endeavor to avoid answering many questions, the occurrence of the act while 13 other persons were present very near the bed where it occurred, one lying in the same bed, without not even one of them inquiring what was happening notwithstanding the fact that the prosecutrix says that she screamed and cried, force us to decide that her testimony should not deserve credibility to the point of constituting evidence of the fact charged beyond a reasonable doubt.
Therefore, the judgment rendered in this case on September 16, 1966, by the Superior Court, Ponce Part, will be reversed and defendant will be acquitted.
Mr. Justice Santana Becerra concurs in the result in a separate opinion, in which Mr. Justice Hernández Matos concurs. Mr. Chief Justice Negrón Fernández dissented.
[73]*73—0—