
    KERLEY v. STATE.
    (No. 6181.)
    (Court of Criminal Appeals of Texas.
    April 20, 1921.)
    1. Rape &wkey;>27, 31 — Indictment need not refer to matter of chastity or consent.
    It is not necessary that an indictment charging rape upon a girl under 18 years of age negative her previous unchastity or refer to the matter of consent.
    2. Jury <í&wkey;l36(5) — Accused cannot be denied peremptory challenges because death penalty was not insisted on “capital felony.”
    As the punishment fixed for rape is confinement in the penitentiary or death, so that the offense is a capital felony within Pen. Code 1911, art. 56, the prosecuting attorney by an express declaration in a rape case that he would not insist on the death penalty cannot reduce the grade of the offense so as to deprive defendant of the right to 15 peremptory challenges allowed in capital cases; for by Pen. Code 1911, art. 1, the Legislature is required to define in plain language every offense and fix its punishment.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Capital Felony.]
    3. Rape <&wkey;59(l) — Submission of death penalty proper.
    In a prosecution for rape, it was proper to submit to the jury the death penalty, although the prosecutor stated that he would not insist upon the death penalty.
    4. Criminal law &wkey;> 1166</2 (6) — Reduction of peremptory challenges held denial of fair trial.
    As Code Cr. Proc. 1911, art. 691, gives the accused the right to 15 peremptory challenges in a capital case, the arbitrary denial of that right in a prosecution for rape which is punishable by death or imprisonment in the penitentiary is a denial of a fair trial, even though the prosecutor stated that he would not insist on the death penalty.
    5.Criminal law &wkey;>H66!/2(6) — Denial of right to “peremptory challenge” held prejudicial error; “objectionable juror.”
    In a prosecution for rape, where the court, on statement by the prosecutor that he would not insist on the death penalty, improperly denied accused the right to 15 peremptory challenges and restricted him to 10, and the record showed that accused desired to challenge five other jurors after exercising his peremptory challenges, the denial was error, for such jurors will be deemed objectionable, for, as related to a peremptory challenge, which is under Code Cr. Proc. 1911, art. 690, a challenge without assigning any reason, a juror is “objectionable” if the accused desiring to eliminate him makes known his wish in a timely and Orderly manner.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Objectionable Juror; First and Second Series, 'Peremptory Challenge.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    
      Dee Kerley was convicted of rape, and appeals.
    Reversed and remanded.
    Smith & Woodruff, of Comanche, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for rape. Punishment fixed at confinement in the penitentiary for a period of five years.

It is not necessary that an indictment charging rape upon a girl under 18 years of age negative her previous unchas-tity or refer to the matter of consent. The punishment for rape is confinement in the penitentiary or death; and in capital cases the statute allows to the state and to the accused each 15 peremptory challenges. In felonies less than capital but 10 such challenges are allowed. In this instance the appellant demanded 15, and the court refused to allow him more than 10. He did not demand a special venire, and the prosecuting attorney expressly stated that he would not insist upon the death penalty. This statement was noted on the docket, and in fact the prosecution did not urge the jury to inflict capital punishment.

The appellant, we think, justly insists that rape was made a capital offense by the lawmaking power of the state, and that its classification as such cannot be changed by any declaration that the prosecuting attorney may make. Our statute says: "An offense for which the highest penalty is death is a capital felony.” Penal Code, art. 56. It is required by statute that the Legislature (in whom is vested the authority to make laws) shall “define in plain language every offense against the law * * * and affix for each offense its proper punishment.” Penal Code, art. 1. There are capital cases in which the indictment includes lower grades of crime. Doubtless in such cases the discretion rests with the prosecuting authorities and the trial judge to dismiss the prosecution so far as it relates to higher grade, and thereby render the offense charged less than capital. Gonzales v. State, 226 S. W. 405.

In the case before us there was no effort to dismiss the charge of rape and prosecute for assault with intent to rape. The conviction is for rape. The court correctly instructed the jury that, if they found the appellant guilty, they should “assess his punishment at death or confinement in the penitentiary for life or any term of years not less than five.” It was proper to so charge because the character of the case for the purpose of selecting a jury was fixed by the indictment, and not by the verdict that might be rendered. Caesar v. State, 127 Ga. 713, 57 S. E. 66; Ex parte McCrary, 22 Ala. 65; Ex parte Dusenberry, 97 Mo. 504, 11 S. W. 217.

To determine whether the accused in a capital case is guilty and to assess his punishment', the Legislature has prescribed the procedure to be followed in the selection and formation of the jury. The option to exercise 15 peremptory challenges in a capital case is given by law to the accused. Code of Crim. Procedure, art. 691. His right to a fair trial is denied him when the privilege of exercising these challenges is arbitrarily taken from him. Ruling Case Law, vol. 16, p. 253; Searle v. Roman Catholic Bishop, 203 Mass. 493, 89 N. E. 809, 25 L. R. A. (N. S.) 992; 17 Ann. Cas. 340; Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011; State v. Briggs, 27 S. C. 80, 2 S. E. 854; Schumaker v. State, 5 Wis. 324; Lamb v. State, 36 Wis. 424; Cruce v. State, 59 Ga. 83; Cyc. of Law & Procedure, vol. 24, p. 351.

At the beginning of the trial the right to challenge more than 10 jurors was assumed, and appellant challenged 12. Discovering this the court required the reinstatement of 2 of these jurors because the appellant’s right to peremptory challenges was exhausted by the use of 10. The jury was incomplete and talesmen were called. Three of these he desired to challenge peremptorily, but by the ruling of the court he was made, against his will, to submit his case to 5 jurors whom he sought to challenge, and whom, had the right, according to the statute, been recognized, he could have stood aside upon his peremptory challenge. It was unnecessary to show that these 5 jurors were disqualified. The term “objectionable juror,” as found in our decisions, has no reference to instances in which there is a denial of the right of peremptory challenges. Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Connell v. State, 45 Tex. Cr. R. 152, 75 S. W. 512; Branch’s Ann. Tex. Penal Code, § 541.

As related to a peremptory challenge, a juror is' “objectionable” whom the accused on trial, desiring to eliminate, makes known his wish in a timely and orderly manner. A peremptory challenge is, in our statute, defined as “a challenge made to a juror without assigning any reason therefor.” Code of Crini. Procedure, art. 690. It is the privilege of accused to exclude from jury service one whom, in his judgment, is unacceptable to him. Thompson on Trials, vol. 1, §-. In conferring it, the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted. In other words, the law fixes the number of challenges and con-íers upon the accused the right to arbitrarily exercise them. This right having been denied the appellant in the instant ease, he having exercised all of the challenges the court would permit him to use, and having been forced to try his case before jurors who were objectionable and whom he sought to challenge peremptorily, the verdict of conviction rendered by the jury so selected cannot, we think, with due respect to the law, be held to reflect the result of a fair trial by an impartial jury, which it is the design of our law shall be given to those accused of crime.

The judgment is reversed, and the cause remanded. 
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