
    Ex parte LYNCHARD.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Bail (§ 43*) — Bailable Offenses — Statutory Rape.
    After a trial for statutory rape on accused’s 13 year old daughter, resulting in a “hung jury,” where it did not appear that force was used, the court erred in refusing bail, especially as accused might have been prosecuted for incest; the highest penalty for which is 10 years’ imprisonment.
    [Ed. Note.—For other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.*]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Habeas corpus proceeding by M. L. Lynch-ard to obtain his release on bail. From the judgment, relator appeals.
    Reversed, and bail granted.
    
      J. J. Bishop, Miller & Miller, N. Frank Faulk, and W. L. Faulk, all of Athens, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with rape on his 13 year old daughter, Nevada Lynchard. He was tried prior to the suing out of this writ of habeas corpus (as shown by the record), resulting in a “hung jury” or mistrial. The evidence adduced on that trial is incorporated in the record as a statement of the facts.

Without a discussion of the facts, we would call attention to the fact that appellant could have "been prosecuted for either one of two offenses, incest or rape. Had the state elected to prosecute for incest, the highest penalty authorized by law to be inflicted would have been 10 years in the penitentiary. However, the state, as it had a right to do, the girl being under 15 years of age, elected to prosecute for statutory rape; and it is provided that this offense may be punished by the infliction of the death penalty. The record in this case does not disclose any force was used, and under the circumstances and the evidence before us we think the court erred in refusing appellant bail. It is not proper for us to discuss the testimony, but the judgment is reversed, and bail granted in the sum of $5,000.

Reversed, and bail granted.  